Law Commons^™

Securing Sovereign State Standing, Katherine Mims Crocker

Faculty Publications

No abstract provided.

Hard Times For Peace Between Two Internally Divided Societies, Claudia Heiss

Human Rights & Human Welfare

These are not promising days for those who desire peace between Israelis and Palestinians, with two states respected by each other and recognized by the international community, living securely side by side. Richard Falk’s article rightly stresses the negative role played by the US Government in its sharp rejection of the Palestinian bid for statehood at the United Nations Security Council. The problem, however, seems to lie deeper in these complex societies and their current political leaderships.

Globalization And Structure, Julian Ku, John Yoo

William & Mary Law Review

No abstract provided.

Unmanned, Unprecedented, And Unresolved: The Status Of American Drone Strikes In Pakistan Under International Law, Andrew C. Orr

Cornell International Law Journal

No abstract provided.

Sovereignty In Theory And Practice, Winston P. Nagan, Aitza M. Haddad

Winston P Nagan

This article deals with the theory and practice of sovereignty from the perspective of a trend in theoretical perspectives as well as the relevant trend in practice. The article provides a survey of the leading thinkers and philosophers views on the nature and importance of sovereignty. The concept of sovereignty is exceeding the complex. Unpacking its meanings and uses over time is challenging. An aspect of this challenge is that the discourse about sovereignty is vibrant in diverse policy, academic and political constituencies. At times its narratives are relatively discrete and at other times the narratives overlap with the discourses …

Human Rights Treaty Body Reform: New Proposals, Andrew Kloster

Andrew Kloster

“Reform” in international human rights law has become a narrow concept. A survey of the literature reveals that nearly any suggestion for reform concerns greater enforcement of international human rights substantive norms.

It is the purpose of this article to address the neglected question of treaty body role. Section II provides a nuts-and-bolts guide to the treaty body mandates for United Nations delegates, States Parties, and international lawyers. This section sketches the proper and improper actions for treaty bodies to take. It is our contention that if treaty bodies were limited to their proper role, they could more effectively use …

The Right Side Of The Coin: Focus On The Human Rights Of People, Not The Failure Of States, Brooke Ackerly

Human Rights & Human Welfare

US policy toward failed states should focus on strengthening civil society and social movements so that people are better able to hold their leaders accountable.

The language of “failed states” disassociates foreign policy from international dialogue about human rights. Instead, “failed states” is a contemporary sound bite that connotes a lack of sovereignty, suggesting that intervention would not violate national sovereignty because in a failed state, there is none. Of course, we could have a similar cynicism about the use of human rights concerns to justify invasion. Certainly, states have tried to choose when to reference international human rights norms …

Taking International Law At Its Word And Its Spirit: Re-Envisioning Responsibility To Protect As A Binding Principle Of International Law, Tessa R. Davis

Faculty Publications

No abstract provided.

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

Not Out Of The (Fox)Woods Yet: Indian Gaming And The Bankruptcy Code, Emir Aly Crowne, Andrew Black, S. Alex Constantin

UNLV Gaming Law Journal

The recent economic downturn has caused Foxwoods Resort Casino, one of the largest casinos in the world, to seek a restructuring of nearly $1.5 billion in debt. Ordinarily, bankruptcy proceedings are triggered when a typical commercial enterprise defaults on its debt. Under these proceedings, creditors step in and collect monies owed to them before any residual equity is dispersed amongst owners. The rub here is that Foxwoods is owned and operated by the Mashantucket Western Pequot Tribal Nation, a sovereign nation under U.S. federal law. This triggers questions of paramountcy; namely, whether tribunal sovereignty can trump federal bankruptcy law.

These …

The Northwest Passage Issue: A Frosty Hornet's Nest, Kirthana Amirthavasani, Ritcha Sahay

Kirthana Amirthavasani

The fast melting glacial mass of the Arctic seems to be affecting the native population in more ways than one. In addition, the diplomatic dialogue over the Northwest Passage sea route which, according to certain reports from Climate Change research organisations, could make an ice free trade transit route that would prove to be an astounding 4000 miles reduction from the route otherwise taken is far from reaching an all-factor-encompassing, reasonable conclusion. Will this passage really be ice-free? Is it possible that this pristine and fragile ecosystem of the north would be able to accommodate such sudden violation and exploitation? …

From Ideology To Pragmatism: China's Position On Humanitarian Intervention In The Post-Cold War Era, Jonathan E. Davis

Jonathan E Davis

This Article fills a gap in the literature by examining in depth China’s state practice and official pronouncements in respect of nine post-Cold War cases typically cited by academics when considering the international legal status of humanitarian intervention. The majority of today’s commentary and scholarship holds that the People’s Republic of China’s position on sovereignty and intervention remains inflexible and absolutist, much as it was for the PRC’s first four decades. This Article contends that this view is outdated and overly simplistic: while China continues to champion a strong conception of state sovereignty in interstate relations, it has signaled a …

An Emerging Norm - Determining The Meaning And Legal Status Of The Responsibility To Protect, Jonah Eaton

Michigan Journal of International Law

The responsibility to protect, from its recent nativity in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), is the latest round in an old debate pitting the principle of nonintervention in the internal affairs of states against allowing such intervention to prevent gross and systematic violations of human rights. Advocates for the concept see it as an important new commitment by the international community, injecting new meaning into the tragically threadbare promise to never again allow mass atrocities to occur unchallenged. ICISS offered the concept of responsibility to protect as a new way to confront …

Preserving Indian Preference For Native American Self-Governance, Freya Ray

American Indian Law Review

No abstract provided.

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson Huhn

Akron Law Faculty Publications

The concept of “popular sovereignty” is not a simple, singular, unified concept; instead, as it has developed in the United States, popular sovereignty embraces the following seven fundamental principles:

1. The Rule of Law. The people are sovereign and their will is expressed through law.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the threat is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses of state control over territory have been common throughout history and violent non-state …

Fictitious States, Effective Control, And The Use Of Force, Brian C. Finucane

Brian C Finucane

This Article examines state practice relating to violent non-state actors operating from “fictitious” states. Fictitious states are entities that possess international legal personality but not effective control over their territories and populations. As the Article explains, many of the world’s states are legal fictions. Although the problem is most vividly illustrated by the United States’ recent military strikes in Pakistan, Yemen and Somalia, the problem is far broader. This Article shows that the security threat posed by non-state actors operating from ungoverned territory is not new. Lapses in state control have been common throughout history and violent non-state actors have …

[Introduction To] The Hank Adams Reader: An Exemplary Native Activist And The Unleashing Of Indigenous Sovereignty, David E. Wilkins (Editor)

Bookshelf

Vine Deloria once said that Hank Adams was the most important Native American in the country. From his treaty rights work to his mediation of disputes between AIM and the US government in the 1970s, Adams shaped modern Native activism. For the first time, Adams' writings are collected, evidencing his unparalleled role in Indian affairs and beyond.

Humanitarian Intervention, The Responsibility To Protect, And Confused Legitimacy, Eric A. Heinze

Human Rights & Human Welfare

A review of:

Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? By James Pattison. Oxford: Oxford University Press, 2010. 284 pp.

and

Humanitarian Intervention: An Introduction. By Aidan Hehir. New York: Palgrave Macmillan, 2010. 303pp.

The Perils Of Walking Fast And Walking Far, Walter Lotze

Human Rights & Human Welfare

When Haitian President René Préval early in January 2011 lambasted the international community for riding roughshod over his country’s sovereignty and his government, and called for greater Haitian ownership over the aid and recovery effort in his country, he highlighted a frustration which has been noted by so many other nations before: while international aid efforts are welcome and usually do provide critical relief to the targeted populations in the short term, they generally tend to undermine governments (and the faith of the people in their government) over the long term.

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson Huhn

Wilson R. Huhn

The concept of “popular sovereignty” is not a simple, singular, unified concept; instead, as it has developed in the United States, popular sovereignty embraces the following seven fundamental principles:

1. The Rule of Law. The people are sovereign and their will is expressed through law.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government …

Empathy's White Elephant: Responding To The Subprime Mortgage Crisis Without Denigrating The Poor, Adam J. Macleod

Faculty Articles

Empathy is the new coverture. Before state legislatures abolished it in the nineteenth century, the plea of coverture nullified any attempts by a married woman to exercise sovereignty over her property. Just as coverture did to married women, the now-well-known call for empathy in our nation's judgments threatens to deny poor borrowers, as a class, the freedom and responsibility to manage their assets. Empathy, as the ideal judge would employ it, would impede the agency of, and thus denigrate, persons within that class. The injustice (and ground for the ultimate abolition) of coverture arose from its failure to respect women …

From Ideology To Pragmatism: China's Position On Humanitarian Intervention In The Post-Cold War Era, Jonathan E. Davis

Vanderbilt Journal of Transnational Law

This Article fills a gap in the literature by examining in depth China's state practice and official pronouncements in respect of nine post-Cold War cases typically cited by academics when considering the international legal status of humanitarian intervention. The majority of today's commentary and scholarship holds that the People's Republic of China's position on sovereignty and intervention remains inflexible and absolutist, much as it was for the PRC's first four decades. This Article contends that this view is outdated and overly simplistic: while China continues to champion a strong conception of state sovereignty in interstate relations, it has signaled a …

Anastasia Tataryn On The Deportation Regime: Sovereignty, Space, And The Freedom Of Movement. Edited By Nicholas Degenova And Nathalie Peutz. Durham & London: Duke University Press, 2010. 520pp., Anastasia Tataryn

Human Rights & Human Welfare

A review of:

The Deportation Regime: Sovereignty, Space, and the Freedom of Movement. Edited by Nicholas DeGenova and Nathalie Peutz. Durham & London: Duke University Press, 2010. 520pp.

Paul Timmermans On Invisible War: The United States And The Iraq Sanctions. By Joy Gordon. Cambridge, Ma: Harvard University Press, 2010. 359 Pp., Paul Timmermans

Human Rights & Human Welfare

A review of:

Invisible War: The United States and the Iraq Sanctions. By Joy Gordon. Cambridge, MA: Harvard University Press, 2010. 359 pp.

Bring Back Aristide, Louis Edgar Esparza

Human Rights & Human Welfare

My friend Annie recently had her trip to Haiti postponed because of the political instability surrounding the November elections. Annie totes modest sums of cash, medicine, and clothing collected from sympathetic friends and has a resolute willingness to help. Together with the partner organizations she is working with, she is hiring Haitians to build an orphanage. Another colleague of mine, Tonya, traveled to the country very soon after the earthquake. She described her experience in The Nation, lamenting that the major US airlines, which had agreed to waive baggage fees for relief aid to Haiti, did not do so for …

Aboriginal Title In The Canadian Legal System: The Story Of Delgamuukw V. British Columbia, Robert T. Anderson

Chapters in Books

Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples’ property rights are in flux in the province of British Columbia–an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on …

Earned Sovereignty: The Future Of Sovereignty-Based Conflict Resolution, Paul Williams

Articles in Law Reviews & Other Academic Journals

No abstract provided.

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

All Faculty Scholarship

In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …

The Crisis Of International Law, Joel P. Tractman

Case Western Reserve Journal of International Law

No abstract provided.