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Articles 1 - 30 of 52
Full-Text Articles in Law
Introduction To The Symposium On Frédéric Mégret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa J. Durkee
Introduction To The Symposium On Frédéric Mégret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa J. Durkee
Scholarly Works
Imagine a future in which the U.S. government has closed the postal service, shuttered its administrative apparatus, and stopped funding education. Confirmation battles have dismantled the federal judiciary, with most adjudication now performed by private arbitrators. After years of erosion of public standards, corporate environmental and labor practices are now left to voluntary self-regulation and market pressures. Private military and security companies command and regulate a vast military infrastructure, executing contracts to meet U.S. intelligence and defense requirements. Prisons have been fully privatized. After losing faith in elections, the U.S. populace no longer insists on them. The country is administered …
Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton
Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton
Scholarly Works
The ability to reach out, with a few keystrokes or a couple lines of code, through the interconnected world of cyberspace and create militarily advantageous effects 10,000 miles away has changed warfare as previously conceived, perhaps more than any other advancement in any other domain of war. Cyber weapons are weapons, and whatever law applies to conventional weapons equally applies to cyber weapons. Long before cyber operations were even science fiction, there was much debate over what constituted a use of force that would justify force in response. In many ways, the debate over what constitutes cyber-attacks has been pasted …
Winning And Losing In Investor-State Arbitration, Tim Samples
Winning And Losing In Investor-State Arbitration, Tim Samples
Scholarly Works
As tensions between investors’ rights and sovereign power escalate, investor-state dispute settlement has become a focal point of backlash and controversy. As a result, ISDS now embodies two opposing currents in international law: (i) the erosion of sovereignty that accompanied economic globalization, trade frameworks, and investment treaties following the Second World War and (ii) more recently, reassertions of sovereignty prompted by recent backlashes against the global economic order. This Article measures and evaluates outcomes of the ISDS system for sovereign participants. Using the best available data, this Article contributes more detailed assessments of sovereign winners (home states of claimants) and …
Book Review: Global Lawmakers: International Organizations In The Crafting Of World Markets By Susan Block-Lieb And Terence C. Halliday, Melissa J. Durkee
Book Review: Global Lawmakers: International Organizations In The Crafting Of World Markets By Susan Block-Lieb And Terence C. Halliday, Melissa J. Durkee
Scholarly Works
Susan Block-Lieb and Terence Halliday gradually build up an empirically grounded, meticulously realized argument that individual lawmakers matter. When one allows facts to inform theory rather than the other way around, the authors show, what becomes clear is that individual lawmakers are not just governmental delegates, but a whole variety of professionals, industry association representatives, and others with some stake in the lawmaking process. These actors work not just through formal processes, but also through an array of informal ones. Most importantly, their presence matters to the content of the legal norms that take hold around the world. The book …
Industry Lobbying And "Interest Blind" Access Norms At International Organizations, Melissa J. Durkee
Industry Lobbying And "Interest Blind" Access Norms At International Organizations, Melissa J. Durkee
Scholarly Works
The standard approach of many international organizations (IOs) to non-governmental associations makes no formal distinctions between nonprofit private sector groups, known as trade or industry associations, and public interest groups. Thus, most IOs offer accreditation and access to both kinds of group on equal terms, without differentiating between them. I call this approach “interest blind” and use this short essay to examine its origins and consequences. Specifically, the approach has resulted in robust participation in international governance by industry and trade lobbying groups, which can affect the quality of deliberation at IOs and of the information that international officials and …
Astroturf Activism, Melissa J. Durkee
Astroturf Activism, Melissa J. Durkee
Scholarly Works
Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …
Persuasion Treaties, Melissa J. Durkee
Persuasion Treaties, Melissa J. Durkee
Scholarly Works
All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties along a fault line: Treaties that govern the behavior of state parties and their agents fall on one side. Treaties in the second category — those I call “persuasion” treaties — commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas …
A Janus Look At International Criminal Justice, Diane Marie Amann
A Janus Look At International Criminal Justice, Diane Marie Amann
Scholarly Works
Invoking the name of Janus, the Roman god who looked simultaneously at the past and the future, this article examines international criminal justice at a watershed moment, when a number of 20-year-old ad hoc tribunals were winding down even as the International Criminal Court was entering its teen years. First explored are challenges posed by politics – that is, the need to secure cooperation from states and from the U.N. Security Council – and economics – that is, the need to work within budgetary constraints. The article then surveys significant developments in each of a half-dozen international criminal courts and …
Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge
Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge
Scholarly Works
The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of …
Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky
Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky
Scholarly Works
From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics -- at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments – not only absolute targets, …
Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen
Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen
Scholarly Works
In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how …
International Law In Black And White, Daniel M. Bodansky
International Law In Black And White, Daniel M. Bodansky
Scholarly Works
Is the study of international law an art or a science? Can the role of international law be explained by general rules, with predictive value? Or does it require the exercise of judgment, in order to account for the richness and complexity of international life? Traditionally, international lawyers have gravitated to the latter view, analyzing issues in an essentially ad hoc and eclectic manner. In their controversial new book, THE LIMITS OF INTERNATIONAL LAW, Jack Goldsmith and Eric Posner argue forcefully for a more scientific approach, relying on the methodology known as rational choice theory. The article examine the book's …
A Negative Proof Of International Law, Peter J. Spiro
A Negative Proof Of International Law, Peter J. Spiro
Scholarly Works
Important legal scholars have launched assaults against both the consequence and legitimacy of international law. These challenges are useful by way of testing international law's theoretical underpinnings, which, in the modern period at least, have never been very secure. With THE LIMITS OF INTERNATIONAL LAW, Jack Goldsmith and Eric Posner have done a service to those who put more faith in international law as a meaningful quantity. Especially in these the field's early renaissance years, understandings of international law should be considerably strengthened by the attack. Though I doubt the authors would thus conceive of their project, THE LIMITS OF …
U.S.-China Textile Trade: An Introduction, C. Donald Johnson
U.S.-China Textile Trade: An Introduction, C. Donald Johnson
Scholarly Works
In the spring of 1999, the Office of United States Trade Representative (USTR) in the Clinton administration was heavily engaged in completing the negotiations on the terms of China's accession agreement to becoming a member of the World Trade Organization (WTO). The Chinese Premier at the time, Zhu Rongji, was scheduled to visit Washington in April, which created an "action forcing event" to complete the agreement for a signing ceremony with President Bill Clinton. After nearly fifteen years of negotiations the end appeared to be near, but several critical issues remained unresolved--including the highly-charged political issue of textiles.
The Drafting Process For A Hague Convention On Jurisdiction And Judgments With Special Consideration Of Intellectual Property And E-Commerce, Knut Woestehoff
The Drafting Process For A Hague Convention On Jurisdiction And Judgments With Special Consideration Of Intellectual Property And E-Commerce, Knut Woestehoff
LLM Theses and Essays
This thesis is a study of the drafting process for the Hague Convention on Jurisdiction and Judgments. It will be demonstrated why the original goal of a broad treaty was given up in favor of a draft convention that only applies in international cases to exclusive choice of court agreements concluded in civil and commercial matters in the business-to-business setting. The reader will get an understanding of how the participating nations and interest groups influenced the negotiations and modified the outcome of the discussions. Special consideration was given to the matters of intellectual property and e-commerce, which were nearly completely …
Free Movement Of Goods: A Comparative Analysis Of The European Community Treaty And The North American Free Trade Agreement, Pedro A. Perichart
Free Movement Of Goods: A Comparative Analysis Of The European Community Treaty And The North American Free Trade Agreement, Pedro A. Perichart
LLM Theses and Essays
The European Union is currently an economic union, which means that it has almost removed every internal barrier to trade, therefore achieving the free circulation of all factors of production (goods, services, capital, and persons) across the union. The North America Free Trade Agreement (“NAFTA”) establishes a free trade area, with the main purpose of eliminating tariffs among its members, and to some extent, reducing other non-tariff barriers to facilitate the cross-border movement of goods. Despite their differences, both regions seek to achieve certain degree of free movement when trading goods within their respective internal markets. This study will analyze …
Accountability Of Transnational Corporations Under International Standards, Lea Hanakova
Accountability Of Transnational Corporations Under International Standards, Lea Hanakova
LLM Theses and Essays
Due to the process of globalization and rapid economic evolution in the last several years, transnational corporations have become extremely powerful. There is an evident disproportion between the numerous rights enjoyed by transnational corporations and the scarce obligations undertaken by them. Given their transnational nature, transnational corporations have been successfully avoiding national regulations of both their home and host states, and they are seeking to operate in countries with the lowest standards so as to increase their profits. This has resulted in the violation of basic human rights. Therefore, there is an increasing need for the creation of international instruments …
The Legality Of Humanitarian Intervention, Eric Adjei
The Legality Of Humanitarian Intervention, Eric Adjei
LLM Theses and Essays
Intervention in the domestic affairs of sovereign states by other sovereign state(s) is one of the ‘hot’ issues in international law today. The issue is ‘hot’ because the concept of human rights is on the ascendancy whilst international law had from time immemorial held the concept of sovereignty and its key feature, the principle of non-interference in high esteem. In fact, the concept of sovereignty has long been regarded as the bedrock of international relations. However, the doctrine of unilateral humanitarian intervention allows state(s) to intervene in the domestic affairs of sovereign states in the event of massive human rights …
Legislation And Implementation Of International Environmental Law By African Countries: A Case Study Of Ghana, Brigitte L. Okley
Legislation And Implementation Of International Environmental Law By African Countries: A Case Study Of Ghana, Brigitte L. Okley
LLM Theses and Essays
The purpose of my thesis is to bring to the light the efforts of African countries, in this case Ghana, in implementing their environmental commitments under international law and some of the problems they face in this regard. African countries played a tremendous role in the emergence of international environmental law, after which environmental institutions and legislations have been set up for the conservation and management of natural resources. The thesis will discuss environmental issues particularly in Ghana, its obligation under various multilateral environmental conventions. The thesis will also focus on some of Ghana’s policies on the environment and its …
Recognition And Enforcement Of International Commercial Arbitration Awards, Shouhua Yu
Recognition And Enforcement Of International Commercial Arbitration Awards, Shouhua Yu
LLM Theses and Essays
Arbitration is an effective way to solve disputes, through which parties from different countries can be partially free from anyone’s local jurisdiction. However, the recognition and enforcement of international arbitration awards still rely on the national court system. Since China opened its door to the world, more and more commercial disputes have been settled through arbitration. However, many foreign investors and writers have complained about the defects in the recognition and enforcement of arbitration awards in China. This paper will look into the causes of these defects in, and try to find ways to resolve the defects.
International Norms In Constitutional Law, Michael Wells
International Norms In Constitutional Law, Michael Wells
Scholarly Works
Whether the Supreme Court should look to international law in deciding constitutional issue depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers …
The Use Of International Sources In Constitutional Opinion, Daniel M. Bodansky
The Use Of International Sources In Constitutional Opinion, Daniel M. Bodansky
Scholarly Works
My argument for the use of international materials to interpret the Constitutional will proceed in four parts. First, I will argue that international law has a venerable history in constitutional interpretation. Second, I will argue that American courts and foreign courts are engaged in a common legal enterprise and could learn from one another. Third, I will argue that the text of certain constitutional provisions invites the use of international materials. Finally, I will argue that taking international opinion into account has strong pragmatic justifications.
Unipolar Disorder: A European Perspective On U.S. Security Strategy, Diane Marie Amann
Unipolar Disorder: A European Perspective On U.S. Security Strategy, Diane Marie Amann
Scholarly Works
Much has been said about the National Security Strategy that U.S. President George W. Bush released one year after the terrorist assaults of September 11, 2001. The Strategy's declaration that the United States would strike first to prevent attack even before an enemy possessed the capability to attack-a point in time much earlier than when tradition would have condoned an act of anticipatory self-defense-provoked considerable comment. Debate within America encompassed multiple points of view; nonetheless, and perhaps not surprisingly, much of the debate reflected an American perspective. This essay, in contrast, considers the Strategy from a European perspective, one that …
Introduction: From Autocracy To Democracy: The Effort To Establish Market Democracies In Iraq And Afghanistan, David Shipley, Clete D. Johnson
Introduction: From Autocracy To Democracy: The Effort To Establish Market Democracies In Iraq And Afghanistan, David Shipley, Clete D. Johnson
Scholarly Works
These remarks were made at the Georgia Journal of international and Comparative Law's conference of April 16, 2004, "From Autocracy to Democracy: The Effort to Establish Market Democracies in Iraq and Afghanistan."
Interim Measures In International Commercial Arbitration: Past, Present And Future, Sandeep Adhipathi
Interim Measures In International Commercial Arbitration: Past, Present And Future, Sandeep Adhipathi
LLM Theses and Essays
This work is a comparative study of the availability and handling of interim measures in international commercial arbitration in different legal systems. It studies the difference in handling of interim measures and the need for a harmonized structure. It also contains a review of the proposed draft amendment to the UNCITRAL Model Law and further suggests a different version for the amendment.
Reservations, Human Rights Treaties In The 21st Century: From Universality To Integrity, Pierrick Devidal
Reservations, Human Rights Treaties In The 21st Century: From Universality To Integrity, Pierrick Devidal
LLM Theses and Essays
This thesis is a study of the question of the legality of reservations to international human rights treaties. The evolution of reservations law demonstrates that the system seek to promote universal adherence to multilateral treaties through flexible rules that reflects the superiority of national sovereignty in the international society. However, the flexibility of reservation law as codified in the Vienna Convention of the Law of Treaties has facilitated wide acceptance of multilateral treaties at the cost of their integrity. In the case of human rights treaties, this issue is of paramount importance considering the essentiality of a balance between integrity …
No. 2 - The Dean Rusk Lectures At The Dean Rusk Center, Eric Stein, Louis Henkin, Abiodun Williams, Manuel Medina Ortega, Gabriel M. Wilner
No. 2 - The Dean Rusk Lectures At The Dean Rusk Center, Eric Stein, Louis Henkin, Abiodun Williams, Manuel Medina Ortega, Gabriel M. Wilner
Occasional Papers Series
The papers delivered by the four distinguished scholars form the content of this second Dean Rusk Center Occasional Paper. Issues of legitimacy-democracy in the activities of integrated international and supranational organizations are dealt with in the first paper by Professor Eric Stein. Professor Louis Henkin offers incisive comparisons and contrasts on the nature and sources of human rights in international law and rights under the Constitution of the United States. The central role of the United Nations in peace operations is explained in the paper by Mr. Abiodun Williams, the director of strategic planning for the office of the Secretary-General …
International Corporate Governance Practices And Their Implications On Investors, Namwandi Hamanyanga
International Corporate Governance Practices And Their Implications On Investors, Namwandi Hamanyanga
LLM Theses and Essays
Corporate governance has become a bonafide subset of company’s law that is concerned with who directs the company and for whose benefit. Its application varies in countries found in the main legal jurisdictions of common and civil law. This thesis identifies these differences by highlighting national corporate governance systems existing in Germany, Japan, United Kingdom and United States. Together, these countries represent systems adopted by several countries located on all continents. Increased cross border investment in this era of globalization has been significantly affected by these governance systems. The thesis shows the reasons why investors, multinational corporations and nations have …
Current Problems Of International Taxation Of Electronic Commerce, Nuran G. Kerimov
Current Problems Of International Taxation Of Electronic Commerce, Nuran G. Kerimov
LLM Theses and Essays
This thesis discusses the main problems that face tax authorities of many countries in the process of taxation of electronic commerce. It analyzes examples of problems posed by the growth of e-commerce in the context international direct and indirect taxation. Current international policy issues are the subject of discussion of the thesis. The thesis also analyzes some of the proposals regarding taxation of electronic commerce.
David Vs. Goliath (2001): An Analysis Of The Oecd Harmful Tax Competition Policy, Truman Butler
David Vs. Goliath (2001): An Analysis Of The Oecd Harmful Tax Competition Policy, Truman Butler
LLM Theses and Essays
The OECD or Organization for Economic Cooperation and Development has produced a report titled Harmful Tax Competition An Emerging Global Issue. The report is the single largest threat to the offshore finance industry. Further, the sweeping recommendations made by the report would at worst potentially discourage foreign investment in some of the more established offshore financial centers. This thesis represents an analytical view of the report and further gives some highlights to the anomalies found in the tax regimes of the major industrialized countries. It is clear that the actions of the OECD does create in effect a tax cartel. …