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Icrc, Nato And The U.S. – Direct Participation In Hacktivities – Targeting Private Contractors And Civilians In Cyberspace Under International Humanitarian Law, Ido Kilovaty Sep 2016

Icrc, Nato And The U.S. – Direct Participation In Hacktivities – Targeting Private Contractors And Civilians In Cyberspace Under International Humanitarian Law, Ido Kilovaty

Duke Law & Technology Review

Cyber-attacks have become increasingly common and are an integral part of contemporary armed conflicts. With that premise in mind, the question arises of whether or not a civilian carrying out cyber-attacks during an armed conflict becomes a legitimate target under international humanitarian law. This paper aims to explore this question using three different analytical and conceptual frameworks while looking at a variety of cyber-attacks along with their subsequent effects. One of the core principles of the law of armed conflict is distinction, which states that civilians in an armed conflict are granted a set of protections, mainly the protection from …


Comparative Law And Private International Law, Ralf Michaels Jan 2016

Comparative Law And Private International Law, Ralf Michaels

Faculty Scholarship

No abstract provided.


Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer Jan 2016

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …


Jurisdiction, Foundations, Ralf Michaels Jan 2016

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.


Obama's Aumf Legacy, Curtis A. Bradley, Jack Landman Goldsmith Jan 2016

Obama's Aumf Legacy, Curtis A. Bradley, Jack Landman Goldsmith

Faculty Scholarship

No abstract provided.


The Conflicts Restatement And The World, Ralf Michaels Jan 2016

The Conflicts Restatement And The World, Ralf Michaels

Faculty Scholarship

No abstract provided.


Understanding The Global In Global Finance And Regulation, Lawrence G. Baxter Jan 2016

Understanding The Global In Global Finance And Regulation, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.


Drawing Lines Among The Persecuted, Kate Evans Jan 2016

Drawing Lines Among The Persecuted, Kate Evans

Faculty Scholarship

Should a victim of persecution be denied protection in the United States if his persecutors forced him to participate in their campaign of terror? In its 2009 decision, Negusie v. Holder, the Supreme Court recognized the “difficult line drawing problems” presented by this question, but failed to offer concrete guidance to the lower courts or the executive agencies charged with drawing those lines. Circuit courts employ a variety of standards, leaving the law in disarray.

This Article offers original historical research to argue that asylum seekers charged with participating in persecution should be afforded a duress defense. It traces the …


Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth Jan 2016

Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth

Faculty Scholarship

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law.


Can Greece Be Expelled From The Eurozone? Toward A Default Rule On Expulsion From International Organizations, Joseph Blocher, Mitu Gulati, Laurence R. Helfer Jan 2016

Can Greece Be Expelled From The Eurozone? Toward A Default Rule On Expulsion From International Organizations, Joseph Blocher, Mitu Gulati, Laurence R. Helfer

Faculty Scholarship

The ongoing European crisis has raised uncomfortable questions about the conditions under which treaty-based unions of nations like the EU or the EMU can legally expel a member—Greece being the most obvious candidate. The EU, for example, has rules governing the voluntary withdrawal of members, but says nothing about whether a member can be expelled. As a matter of international law, what does the silence mean? Put differently: What is the default rule regarding expulsions when a treaty says nothing about forced withdrawals? Is there an absolute bar on expulsion, as some have suggested? Conversely, is there an implicit right …


Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith Jan 2016

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …


The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr. Jan 2016

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

Faculty Scholarship

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.


Does Brexit Spell The Death Of Transnational Law?, Ralf Michaels Jan 2016

Does Brexit Spell The Death Of Transnational Law?, Ralf Michaels

Faculty Scholarship

The British leave vote in the referendum on EU membership has important implications for how we think about law . The vote must be viewed as a manifestation of a globalized nationalism that we find in many EU member states and many other countries. As such, it is also a challenge of the idea of transnational law, forcefully introduced in Jessup’s book on Transnational law 60 years ago. In this paper, I suggest that the hope to return from transnational law to the nation state of the 19th century is nostalgic and futile. However, I argue that transnational law has …


25 Years, Where Are We Now? Global Trade & Sovereign Debt, Steven L. Schwarcz Jan 2016

25 Years, Where Are We Now? Global Trade & Sovereign Debt, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.


Wächter, Carl Georg Von, Ralf Michaels Jan 2016

Wächter, Carl Georg Von, Ralf Michaels

Faculty Scholarship

Carl Georg von Wächter (1797-1880) was once considered 'one of the greatest German jurists of all times’, but was all but forgotten in the 20th century, despite an excellent dissertation on his work in private international law by Nikolaus Sandmann. In private international law, he is known mainly for his critique of earlier theories, in particular the theory of statutes. Positively, Wächter is mainly (and not accurately) known as a proponent of a strong preference for the lex fori and as such mainly presented in opposition to Friedrich Carl von Savigny’s theory (Savigny, Friedrich Carl von). Only recently has there …


Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby Jan 2016

Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby

Faculty Scholarship

No abstract provided.


Accountability And Autonomous Weapons: Much Ado About Nothing?, Charles J. Dunlap Jr. Jan 2016

Accountability And Autonomous Weapons: Much Ado About Nothing?, Charles J. Dunlap Jr.

Faculty Scholarship

This purpose of this essay is to critique a 2015 report entitled Mind the Gap: The Lack of Accountability for Killer Robots by Human Rights Watch (HRW) produced with the assistance of the Harvard Law School’s International Human Rights Clinic (IHRC). The HRW/IHRC paper attempted to establish that autonomous weapons should be banned because, they claim, “neither criminal law nor civil law guarantees adequate accountability for individuals directly or indirectly involved in the use of fully autonomous systems.” Contrary to HRW/IHRC assertions, this article maintains that although no one can “guarantee” accountability, there are sufficient legal tools to do so …


The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley Jan 2016

The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley

Faculty Scholarship

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this …


Towards A New International Law Of The Atmosphere?, Peter H. Sand, Jonathan B. Wiener Jan 2016

Towards A New International Law Of The Atmosphere?, Peter H. Sand, Jonathan B. Wiener

Faculty Scholarship

Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide …


Competing For Refugees: A Market-Based Solution To A Humanitarian Crisis, Joseph Blocher, Mitu Gulati Jan 2016

Competing For Refugees: A Market-Based Solution To A Humanitarian Crisis, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The current refugee crisis demands novel legal solutions, and new ways of summoning the political will to implement them. As a matter of national incentives, the goal must be to design mechanisms that discourage countries of origin from creating refugees, and encourage host countries to welcome them. One way to achieve this would be to recognize that persecuted refugee groups have a financial claim against their countries of origin, and that this claim can be traded to host nations in exchange for acceptance. Modifications to the international apparatus would be necessary, but the basic legal elements of this proposal already …