Law Commons^™

Climate Change, Forests, And International Law: Redd's Descent Into Irrelevance, Annecoos Wiersema

Vanderbilt Journal of Transnational Law

Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD--Reducing Emissions from Deforestation and Degradation--to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of …

Towards A Declaratory School Of Government Recognition, Joshua Downer

Vanderbilt Journal of Transnational Law

Recognition of governments has historically been a political matter. Governments could choose to recognize or not to recognize any other government, free from the auspices of international law. However, in the wave of prodemocracy optimism after the dissolution of the Soviet Union, a group of international legal scholars declared the existence of a universal democratic entitlement, which implied that recognition of governments had legal significance. These scholars, known collectively as the Manhattan school, are generally regarded as having vastly overstated the legal implications of the shift toward democratic governance. While it is true that there is scant evidence of a …

Returning Sovereignty To The People, Hallie Ludsin

Vanderbilt Journal of Transnational Law

Governments across the world regularly invoke sovereignty to demand that the international community "mind its own business" while they commit human rights abuses. They proclaim that the sovereign right to be free from international intervention in domestic affairs permits them unfettered discretion within their territory. This Article seeks to challenge those proclamations by resort to sovereignty in the people, a time-honored principle that is typically more rhetorical than substantive. Relying on classical interpretations of sovereignty, this Article infuses substance into the concept of sovereignty in the people to recognize that a government is entitled to sovereign rights only as the …

Lawyers And Precedent, Harlan G. Cohen

Vanderbilt Journal of Transnational Law

What role do lawyers, as lawyers, play in the creation, development, and maintenance of the international legal order? This is an oddly underexplored question. It has become increasingly popular to look at the role various non-state actors--nongovernmental organizations (NGOs), grassroots activists, scientists, insurgent groups, among many others--play in the shaping of international law. It has also become common to talk in terms of the "disaggregated state," and of how various substate actors--central bankers, regulators, judges, and military personnel--shape international law and policy through their interactions with each other. Nor have international lawyers ever been particularly shy about their importance to …

Reverse-Rhetorical Entrapment: Naming And Shaming As A Two-Way Street, Suzanne Katzenstein

Vanderbilt Journal of Transnational Law

"Naming and shaming," the process of exposing, publicizing, and condemning human rights abuses, is one of the most important and common strategies used by human rights advocates. In an international political system where power is typically defined in terms of military strength and market size, advocacy groups draw on a mixture of moral and legal means to pressure governments to improve their human rights behavior. In general, the mere act of naming and shaming can promote human rights norms by reinforcing the shared understanding that some types of government conduct are beyond the pale.'

Naming and shaming may also work …

Constraining Targeting In Noninternational Armed Conflicts, Peter Margulies

Vanderbilt Journal of Transnational Law

An American drone pilot thousands of miles away from Afghanistan sees a tempting target on his computer screen. Thanks to the Predator drone's video capabilities,' the pilot is treated to the spectacle of a known Taliban commander and over a dozen other armed men greeting a dozen tribesmen, who are also armed to the teeth. Everyone depicted on-screen has a gun. The pilot fires the Predator's missile. Shortly thereafter, he confirms the deaths of thirty Taliban fighters and associated forces.

While the facts above, particularly the presence of the known Taliban commander, tend to show that the strike was consistent …

Introductory Note To The Department Of State Rewards Program Update And Technical Corrections Act Of 2012, Michael A. Newton

Vanderbilt Law School Faculty Publications

For nearly three decades, the United States has offered monetary rewards designed to facilitate the apprehension and transfer for trial of suspects when their trial would directly advance American national interests. In the 1990s, for example, posters and matchbooks appeared across the Balkans with contact information available to anyone who might be willing to assist in the transfer of Slobodan Miloševic´ or Radovan Karadžic´ to face charges before the International Criminal Tribunal for the former Yugloslavia. In Congress’s view, this rewards program has helped to generate actionable intelligence that has prevented terrorist attacks, aided convictions of key suspects charged with …

220 Years Later And The Commonwealth Is Still Imposing Laws On The United States, Michael P. Geiger

Vanderbilt Journal of Transnational Law

The United States has been combating the bribery of foreign officials for 35 years through the Foreign Corrupt Practices Act (FCPA). Both domestic and international prosecutions for bribery remained almost nonexistent for decades. In recent years, the United States experienced an explosion of enforcement actions under the FCPA. Broad enforcement theories and increased prosecutorial effort have greatly expanded the scope of the FCPA. Moreover, the passage of the UK Bribery Act in 2010 has forced many U.S. organizations to face additional and conflicting antibribery regimes. Although the United States remains the world leader in prosecuting the bribery of foreign officials, …

Proportionality In Military Force At War's Multiple Levels: Averting Civilian Casualties Vs. Safeguarding Soldiers, Ziv Bohrer, Mark Osiel

Vanderbilt Journal of Transnational Law

To what lengths may a state go to protect its soldiers in war? May it design its military operations to further that goal if this significantly increases civilian casualties? International law currently offers no clear answers. Because recent wars have seen many states prioritize soldier safety over avoiding civilian casualties, spirited debate has arisen over the legal defensibility of this practice. This debate currently focuses on an ethics code proposed by two influential Israeli thinkers and allegedly embodied in Israel's conduct of its 2008-2009 Gaza war with Hamas. This Article shows that current discussion fails to appreciate how judgments about …

Cognitive Conflicts And The Making Of International Law: From Empirical Concord To Conceptual Discord In Legal Scholarship, Jean D'Aspremont

Vanderbilt Journal of Transnational Law

The international legal scholarship, in its quest for a paradigm able to apprehend international norm-generating processes qualifying as lawmaking, has been oscillating between static approaches and dynamic approaches. The former are based on the author of the norm (subjecthood) or its formal origin (pedigree) whilst the latter (e.g., participation) try to capture and explain the intricate and multidimensional fluxes between the authors of the norms and the norms themselves (impact or dynamic pedigree). International legal scholars have thus been resorting to various and diverging paradigms to make sense of international lawmaking. All of these approaches will be described in further …

Signal And Affirm: How The United Nations Should Articulate The Right To Remedial Secession, John R. Ablan

Vanderbilt Journal of Transnational Law

In international law, the right of peoples to self-determination as applied to remedial secession is anything but clear. The International Court of Justice had an opportunity to clarify this area of law in its recent advisory opinion concerning the unilateral declaration of independence made by Kosovo. Much to the disappointment of international commentators, the Court expressly declined to adjudicate whether Kosovo had, by its declaration, attained state status. Instead, the Court declared that international law does not prohibit unilateral declarations of independence. This Note argues that the proper method for the United Nations to articulate international law of secession is …

Lifting The Veil Of Secrecy: Judicial Review Of Administrative Detentions In The Israeli Supreme Court, Shiri Krebs

Vanderbilt Journal of Transnational Law

All around the world, hundreds of individuals are constantly subjected to administrative detentions designed to prevent them from committing future atrocities. Generally, the main protection against arbitrary and unjustified administrative detentions is judicial review. Nonetheless, judicial review of administrative detention proceedings suffers from inherent difficulties and is typically based on ex parte proceedings and secret evidence. In spite of these difficulties and based on a few renowned cases, it is widely accepted in the scholarly debates that the Israeli judicial review model is robust and effective. Therefore, prominent international law scholars often recommend the adoption of this model in various …

The Role Of International Law In Intrastate Natural Resource Allocation, Lillian A. Miranda

Vanderbilt Journal of Transnational Law

State natural resource development projects have become sites of intense political, social, and cultural contestation among a diversity of actors. In particular, such projects often lead to detrimental consequences for the empowerment, livelihood, and cultural and economic development of historically marginalized communities. This Article fills a gap in the existing literature by identifying and analyzing emerging international law approaches that impact the intrastate allocation of land and natural resources to historically marginalized communities, and thereby, carve away at states' top-down decision-making authority over development. It argues that while international law may have only been originally concerned with the allocation of …

Enforcing The Nuclear Nonproliferation Regime: The Legality Of Preventive Measures, Cristian Defrancia

Vanderbilt Journal of Transnational Law

Efforts to limit the proliferation of nuclear weapons and nuclear-weapons-related technology have increasingly involved economic, technological, and military forms of coercion implemented in an environment of low-level conflict. Coercive counterproliferation measures have included a range of actions, including targeted economic sanctions, industrial sabotage, cyber attacks, targeted killings, and military strikes. While the nonproliferation obligations of states are well-established under relevant treaties, state practice, and the international monitoring system of the International Atomic Energy Agency (IAEA), norms relating to the enforcement of those obligations are not clearly defined in legal instruments. This Article reviews the legality of prevention and enforcement measures …

Dynamics Of Healthcare Reform: Bitter Pills Old And New, Christopher N.J. Roberts

Vanderbilt Journal of Transnational Law

The United States is at a crossroads--albeit one it has visited several times before. Although the Supreme Court has ruled upon the constitutionality of the Patient Protection and Affordable Care Act, the polarizing controversy surrounding national healthcare that began several generations ago is likely to continue into the foreseeable future. In this latest round of national debates, the issue of healthcare has been framed exclusively as a domestic issue. But history shows that the question of national healthcare in the United States has also been an extremely important issue for international law and international politics. To shed light on the …

Reflections From The International Criminal Court Prosecutor, Fatou B. Bensouda

Vanderbilt Journal of Transnational Law

Today I would like to introduce the idea of a new paradigm in international relations, which was introduced by the work of the drafters of the Rome Statute and the establishment of the International Criminal Court (ICC): this idea is that of law as a global tool to contribute to the world's peace and security. This idea first surfaced with the belief that the power of law has the capacity to redress the balance between the criminals who wield power and the victims who suffer at their hands. Law provides power for all regardless of their social, economic, or political …

A Chink In The Armor: How A Uniform Approach To Proportionality Analysis Can End The Use Of Human Shields, Margaret T. Artz

Vanderbilt Journal of Transnational Law

The appropriate response to human shields is a recurring issue in modern warfare. Technological asymmetry, disparate obligations, and doctrinal divergence between state and nonstate adversaries combine to make civilians account for 84 percent of combat deaths. Just as a slot machine entices a gambler though he rarely wins, the international community's inconsistent response to human shields has placed shield users on an intermittent reinforcement schedule, thereby ensuring that this tactic remains part of insurgent strategy. Long-term protection of civilians requires eliminating this tactic. Principles of behavior science indicate that an effective way to do so is to uniformly remove its …

Abusing The Authority Of The State: Denying Foreign Official Immunity For Egregious Human Rights Abuses, Beth Stephens

Vanderbilt Journal of Transnational Law

Government officials accused of human rights abuses often claim that they are protected by state immunity because only the state can be held responsible for acts committed by its officials. This claim to immunity is founded on two interrelated errors. First, the post-World War II human rights transformation of international law has rendered obsolete the view that a state can protect its own officials from accountability for human rights violations. Second, officials can be held individually responsible for their own actions even when international law also holds the states liable for those acts. This Article begins with an analysis of …

The Immunity Of State Officials Under The Un Convention On Jurisdictional Immunities Of States And Their Property, David P. Stewart

Vanderbilt Journal of Transnational Law

The U.S. Supreme Court decided in Samantar v. Yousuf that claims of immunity by individual foreign officials in U.S. courts will be determined not under the Foreign Sovereign Immunities Act but instead under the common law, drawing on principles of international law. The 2004 UN Convention on the Jurisdictional Immunities of States and Their Properties represents the most recent and comprehensive international thinking on the question of jurisdictional immunities of foreign states and their officials in foreign courts. Under the Convention, individual representatives of a state acting in that capacity are entitled to the same immunities as the state itself. …

Changing The International Law Of Sovereign Immunity Through National Decisions, Lori F. Damrosch

Vanderbilt Journal of Transnational Law

The international law of sovereign immunity derives from state practice embodied in national judicial decisions and legislation. Although some U.S. Supreme Court decisions refer to this body of law using terms like "grace and comity," the customary international law of sovereign immunity is law, which national courts should consider when arriving at immunity decisions. While it would be possible for a widely followed international treaty to work changes in customary international law, the UN Convention on Jurisdictional Immunities of States and Their Property has not done so yet. National legislation such as the U.S. Foreign Sovereign Immunities Act can precipitate …

Italian Judges' Point Of View On Foreign States' Immunity, Elena Sciso

Vanderbilt Journal of Transnational Law

The Article gives an account of the most recent Italian practice as regarding foreign states' immunity from the jurisdiction of the forum state. In the absence of domestic laws regulating the matter, Italian courts thus far have been directly applying international customary law, making recourse to a progressive interpretation of international rules. In the past, Italian judicial practice together with the Belgian one gave a great contribution to the consolidation of the restrictive immunity theory. In the last few years, Italian courts have lifted immunity with respect to acts of a foreign state qualified as "acta iure imperii" in civil …

The International Law Of State Immunity And Its Development By National Institutions, Christian Tomuschat

Vanderbilt Journal of Transnational Law

The proceedings between Germany and Italy currently pending before the International Court of Justice have revived interest in the legal regime of jurisdictional immunity of states. Germany charges Italy with violating the basic rule of state immunity by entertaining reparation claims brought before its civil courts by victims of serious breaches of international humanitarian law committed by Nazi Germany during World War II. Jurisdictional immunity is not absolute, but it remains preserved for truly governmental acts like military operations. None of the generally recognized exceptions apply in the German-Italian dispute. Damages resulting from international armed conflict are not covered by …

State Immunity And Human Rights: Heads And Walls, Hearts And Minds, Roger O'Keefe

Vanderbilt Journal of Transnational Law

This Article suggests that arguments against the availability of state immunity as a bar to civil actions alleging internationally wrongful ill-treatment abroad are not only destined to fall by and large on deaf ears but are also misdirected as a matter both of fairness and of the ultimate policy objectives of human rights advocates. It would make more sense for victims' interest groups to target the failure of allegedly responsible states to afford victims the opportunity of a remedy and the failure of victims' states of nationality to do enough to defend their nationals' interests.

The Threat Of Force As An Action In Self-Defense Under International Law, James A. Green, Francis Grimal

Vanderbilt Journal of Transnational Law

Self-defense is a universally accepted exception to the prohibition of the use of force in international law, and it has been subjected to careful academic scrutiny. The prohibition of the threat of force, although equally important in terms of its normative status to the prohibition on use, has attracted far less academic commentary to date. This Article examines the relationship between the two prohibitions--of the use and threat of force--and considers the largely unexplored possibility of states utilizing a threat of force as a means of lawful defensive response: self-defense in the form of a threat. The status of this …

Torture In The Eyes Of The Beholder, Mary-Hunter M. Mcdonnell, Loran F. Nordgren, George Loewenstein

Vanderbilt Journal of Transnational Law

This Article draws upon recent social psychological research to demonstrate the psychological difficulty of distinguishing between torture and enhanced interrogation. We critique the accuracy of evaluations made under the current torture standard using two constructs--reliability and validity--that are employed in the social sciences to assess the quality of a construct or metric. We argue that evaluations of interrogation tactics using the current standard are both unreliable and invalid. We first argue that the torture standard is unreliable because of the marked variation in the manner in which different jurisdictions interpret and employ it. Next, we draw on recent social psychological …

The Dog That Caught The Car: Observations On The Past, Present, And Future Approaches Of The Office Of The Legal Adviser To Official Acts Immnunities, John B. Bellinger Iii

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in Samantar v. Yousuf vindicated the position of the State Department's Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by common law and customary international law as articulated by the Executive Branch, rather than by the Foreign Sovereign Immunities Act of 1976. But the decision will place a burden on the Office of the Legal Adviser, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the United States. The …

Superior Responsibility Of Civilians For International Crimes Committed In Civilian Settings, Yael Ronen

Vanderbilt Journal of Transnational Law

This Article examines the notion of superior responsibility of civilians for international crimes committed in civilian settings. The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. Jurisprudence and academic writers emphasize that the doctrine is applicable to civilian superiors of military or paramilitary organizations, but there has never been a detailed analysis of the doctrine's relevance and applicability in civilian settings. The Article argues that the claim that customary international law extends the doctrine of superior responsibility to civilians, let alone in civilian settings, is inaccurate. In …

Legal Techniques For Dealing With Scientific Uncertainty In Environmental Law, Jorge E. Vinuales

Vanderbilt Journal of Transnational Law

This Article analyzes how scientific uncertainty is handled in international environmental law. It identifies ten legal techniques used for this purpose (i.e., precautionary reasoning; framework-protocol approach; advisory scientific bodies; law-making by treaty bodies; managerial approaches to compliance; prior informed consent; environmental impact assessment and monitoring; provisional measures; evidence; and facilitated liability) and links them to four different stages of development of environmental regimes (i.e., advocacy, design, implementation, and reparation). These techniques are illustrated by reference to some fifteen environmental treaties and other instruments as well as through a detailed case study focusing on the climate change regime.

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enriquez

Vanderbilt Journal of Transnational Law

This Article builds upon Philip C. Jessup's revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-&-vis international law. This theory, called metanationalism, rejects Harold Koh's theory of transnationalism and demonstrates that …

Private Certification Versus Public Certification In The International Environmental Arena, Patricia A. Moye

Vanderbilt Journal of Transnational Law

In recent decades, the world's various fisheries have seen a number of problems, primarily depletion of fish stocks due to overfishing. While the UN has created some soft law, including sustainable fishing standards, to deal with the problem of fisheries depletion, no binding international laws currently exist. Several entities have decided to deal with the problem on their own, through eco-labeling programs. The Marine Stewardship Council, a private entity not directly affiliated with the government of any country, has created such a program. In addition, some governments have created similar programs, including Japan through its Marine Eco-Label Japan program. While …