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Custom, General Principles And The Great Architect Cassese, Mary Fan

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Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. "[T]he law lives in persons," and to understand the law one must study the …

Accountability And The Sri Lankan Civil War, Steven R. Ratner

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Sri Lanka's civil war came to a bloody end in May 2009, with the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by Sri Lanka's armed forces on a small strip of land in the island's northeast. The conflict, the product of long-standing tensions between Sri Lanka's majority Sinhalese and minority Tamils over the latter's rights and place in society, had begun in the mid-1980s and ebbed and flowed for some twenty-five years, leading to seventy to eighty thousand deaths on both sides. Government repression of Tamil aspirations was matched with ruthless LTTE tactics, including suicide bombings of civilian …

Theater Of International Justice, Jessie Allen

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In this essay I defend international human rights tribunals against the charge that they are not “real” courts (with sovereign force behind them) by considering the proceedings in these courts as a kind of theatrical performance. Looking at human rights courts as theater might at first seem to validate the view that they produce only an illusory “show” of justice. To the contrary, I argue that self-consciously theatrical performances are what give these courts the potential to enact real justice. I do not mean only that human rights tribunals’ dramatic public hearings make injustice visible and bring together a community …

Party Autonomy And Access To Justice In The Uncitral Online Dispute Resolution Project, Ronald A. Brand

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The United Nations Commission on International Trade Law (UNCITRAL) has directed its Working Group III to prepare instruments that would provide the framework for a global system of online dispute resolution (ODR). Negotiations began in December 2010 and have produced an as-yet-incomplete set of procedural rules for ODR. It is anticipated that three other documents will be prepared, addressing substantive principles to be applied in ODR, guidelines and minimum requirements for ODR providers and neutrals, and a cross-border mechanism for enforcement of the resulting ODR decisions on a global basis.

The most difficult issues in the ODR negotiations are centered …

Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand

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In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules …

Remarks On The Gjil Symposium On Corporate Responsibility And The Alien Tort Statute, Vivian Grosswald Curran

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The following essay is a summary of remarks I delivered at the symposium on corporate responsibility and the Alien Tort Statute held at Georgetown Law School after the first Kiobel v. Royal Dutch Petroleum Co. Supreme Court oral argument. My remarks addressed the importance of considering foreign national law when judging the meaning of universal civil jurisdiction, and, implicitly, the inextricability of domestic from international law matters.

Repugnancy In The Arab World, Haider Ala Hamoudi

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“Repugnancy clauses” -- those constitutional provisions that, in language that varies from nation to nation, require legislation to conform to some core conception of Islam -- are all the rage these days. This clause, a relatively recent addition to many modern constitutions, has emerged as a central focus of academic writing on Muslim state constitutions generally, and on Arab constitutions in particular. Much of the attention it has received has been enlightening and erudite. Yet one aspect of the broader repugnancy discourse that deserves some attention is an important, often de facto, temporal limitation on the effect of the clause. …

Too Rough A Justice: The Ethiopia-Eritrea Claims Commission And Civil Liability For Claims For Rape Under International Law, Ryan S. Lincoln

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The developments in international law prohibiting rape during armed conflict have grown at a rapid pace in recent decades. Whereas rape had long been considered an inevitable by-product of armed conflict, evolution in international humanitarian law (IHL) has relegated this conception mostly to the past. The work of international criminal tribunals has been at the forefront of this change, developing the specific elements of the international crime of rape, and helping to change the perception of rape in international law violations of IHL, however also give rise to civil liability Despite the advances with respect to rape made in the …

Arab Spring, Libyan Liberation And The Externally Imposed Democratic Revolution, Haider Ala Hamoudi

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Richard Albert wants to know what happened to our commitment to the democratic revolution, and I share his frustrations and his befuddlement. Indeed, I might phrase the question more broadly than he has, and ask precisely what has become of our commitment to democratic rule, however brought about. Contemporary events in the Arab world leave one more confused than ever as to America’s understanding of its own role in supporting democratic orders. This is a matter that deserves more attention than it has been receiving. I consider Professor Albert’s contribution important, and helpful in advancing the discussion in a positive …

Eric Stein (1913-2011), Daniel Halberstam, Steven Ratner, Mathias Reimann

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On July 28,2011, Eric Stein, pillar of international law, pioneer of the legal study of European integration, and master of comparative law, passed away in Ann Arbor, Michigan. He was ninety-eight years old. He joined this Journal's Board of Editors in 1963, serving as a regular member until 1978, and thereafter as an honorary editor. Stein was the last of that great generation of European-educated jurists who fled Nazism and became leading figures in comparative and international law in the United States.

A Functional Approach To Targeting And Detention, Monica Hakimi

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The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …