Law Commons^™

Non-Refoulement: The Search For A Consistent Interpretation Of Article 33, Ellen F. D' Angelo

Vanderbilt Journal of Transnational Law

The international community rose to the challenge of addressing mass migration with the 1951 Convention Relating to the Status of Refugees (1951 Convention). The 1951 Convention established several important concepts as binding international law, including the requirements for refugee classification and the principle of non-refoulement. The duty of non-refoulement prohibits state-parties from expelling or returning a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion. According to the definition in Article 33, non-refoulement is applicable …

Counterinsurgency, The War On Terror, And The Laws Of War, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected …

Enforcing Human Rights In U.S. Courts And Abroad: The Alien Tort Statute And Other Approaches, John B. Bellinger, Iii

Vanderbilt Journal of Transnational Law

U.S. foreign policy--under every Administration--involves promoting respect for human rights around the world. Most of you probably know that the State Department spends a great deal of time and effort abroad, persuading foreign governments to change their human rights behavior and administering programs to advance the cause of human rights. What many of you may not be aware of, though, is that we are now quite frequently occupied "domestically" with suits by foreign plaintiffs in U.S. courts--often arising from conduct that occurred in other countries and has no significant connection to the U.S., that may not be consistent with our …

Treason In The Age Of Terrorism: An Explanation And Evaluation Of Treason's Return In Democratic States, Kristen E. Eichensehr

Vanderbilt Journal of Transnational Law

Treason is an ancient crime, but it fell into disuse in most Western democratic states after World War I. Now it is making a comeback with prosecutions or threatened prosecutions against a new type of enemy--accused terrorists--in the United States, the United Kingdom, and Israel. In the postwar period, commentators wrongly argued that treason would no longer be prosecuted because it is antiliberal, too difficult to prove, unnecessary because modern democracies are stable and secure, and premised on an extinct sense of loyalty to the state. This Article begins by debunking these claims and explaining treason's recent reappearance. First, democratic …

The Crisis Of International Law, Rafael Domingo

Vanderbilt Journal of Transnational Law

This Article delves into the reasons for the current crisis in the traditional international law system, considering how the system developed through the centuries in order to respond to the needs and circumstances of past historical epochs, as well as how the system is no longer capable of meeting the unique developments and needs of life in the Third Millennium. The Article considers the fundamental problems of a state-based system of international law that--rather than focusing on the prime actor and focus of the law, the human person, and his inherent dignity--concentrates on and gives enormous power to the artificial …

Exceptional Engagement: Protocol I And A World United Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable …

Treaty Bodies And The Interpretation Of Human Rights, Kerstin Mechlem

Vanderbilt Journal of Transnational Law

The eight United Nations human rights treaty bodies play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. Unfortunately, their output often suffers from methodological weaknesses and lack of coherence and analytical rigor, which compromise its legitimacy.

This Article suggests that these deficits could in large part be addressed if the committees applied the customary legal rules of interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna Convention), which requires attention to the text, context, and object and purpose …

The Emperor Is Still Naked: Why The Protocol On The Rights Of Women In Africa Leaves Women Exposed To More Discrimination, Kristin Davis

Vanderbilt Journal of Transnational Law

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol's language will have on its ability to achieve its …