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Articles 1 - 30 of 43
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
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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
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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
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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
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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 …
The Organization Of Islamic Cooperation's (Oic) Response To Sexual Orientation And Gender Identity Rights: A Challenge To Equality And Nondiscrimination Under International Law, Robert C. Blitt
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This article further explores the Organization of Islamic Cooperation’s (“OIC”) peculiar understanding of international nondiscrimination and equality norms by considering how it engages with sexual orientation and gender identity (“SOGI”) rights. After reviewing the OIC’s historical approach to human rights and its ambivalent acceptance of universality, the article focuses on the organization’s contemporary effort to promote the “protection of the family” within the international human rights arena. This campaign — driven by the OIC’s belief that “Islamic family values” are under legal and intellectual assault — champions only those families premised on marriage between a man and a woman. Consequently, …
Leveraging Regional Human Rights Mechanisms Against Universal Human Rights: The Oic Independent Permanent Human Rights Commission Study On Sexual Orientation, Robert C. Blitt
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This article critically assesses a recent study on sexual orientation and gender identity (SOGI) prepared by the Organization for Islamic Cooperation’s (OIC) Independent Permanent Human Rights Commission (IPHRC). The first two parts review the establishment of the IPHRC and the norms governing regional human rights mechanisms (RHRMs). Following this, the article demonstrates that the methodology and conclusions evidenced in the IPHRC’s SOGI study diametrically oppose substantive international human rights law, and furthermore undermine the intended purpose of RHRMs within the human rights system. The article concludes by recommending that human rights advocates and others clearly and publicly call out these …
Equality And Nondiscrimination Through The Eyes Of An International Religious Organization: The Organization Of Islamic Cooperation's (Oic) Response To Women's Rights, Robert C. Blitt
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This article is the first of a two part series that draws on women’s rights and sexual orientation and gender identity (SOGI) to explore how the Organization of Islamic Cooperation (OIC) represents, interprets and seeks to impact the right to equality and protection against discrimination as enshrined under international human rights law. The study is a novel one in as much as the OIC is neither a state nor a religious group per se. Rather, the OIC stands out as the only contemporary intergovernmental organization unifying its member states around the commonality of a single religion. In this capacity, the …
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
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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
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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
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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
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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 …
When Foreigners Infringe Patents: An Empirical Look At The Involvement Of Foreign Defendants In Patent Litigation In The U.S., Marketa Trimble
When Foreigners Infringe Patents: An Empirical Look At The Involvement Of Foreign Defendants In Patent Litigation In The U.S., Marketa Trimble
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This paper presents results from a multiple-year project concerned with the involvement of foreign (non-U.S.) entities in U.S. patent litigation. A comparison of data from 2004 and 2009 that cover 5,407 patent cases filed in U.S. federal district courts in those two years evidences an increase in the number of cases involving foreign defendants, and thus an increasing potential for cross-border enforcement problems. With this basic finding the research supports the proposition advanced by a number of intellectual property scholars in the U.S. and abroad that rules need to be established to facilitate a smooth process for recognition and enforcement …
Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge
Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge
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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 …
Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks
Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks
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The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …
Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky
Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky
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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
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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 …
A Negative Proof Of International Law, Peter J. Spiro
A Negative Proof Of International Law, Peter J. Spiro
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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 …
International Law In Black And White, Daniel M. Bodansky
International Law In Black And White, Daniel M. Bodansky
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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 …
U.S.-China Textile Trade: An Introduction, C. Donald Johnson
U.S.-China Textile Trade: An Introduction, C. Donald Johnson
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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.
International Norms In Constitutional Law, Michael Wells
International Norms In Constitutional Law, Michael Wells
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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
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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
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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
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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."
The Role Of The United Nations In The Maintenance Of Peace Before And After The Year Two Thousand, Gabriel M. Wilner
The Role Of The United Nations In The Maintenance Of Peace Before And After The Year Two Thousand, Gabriel M. Wilner
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This short description of some of the important ideas set forth in the various contributions to the Colloquium is meant to give the reader an idea of the broad spectrum of issues and problems with which the international community is confronted both in continuing to use the present structure and competence of the Security Council and in making reforms. While the General Assembly and other organs of the United Nations and of regional and national institutions are mentioned as useful in the struggle to maintain world peace, it is clear that the Security Council will continue to dominate the work …
The New Dimensions Of United Nations Peacemaking, Louis B. Sohn
The New Dimensions Of United Nations Peacemaking, Louis B. Sohn
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Since its beginning, mankind has alternated between periods of peace and war. The Twentieth Century was the first one in which attempts were made to outlaw war and to establish institutions which would protect the peoples of the world against war. After the carnage of the Second World War, the United Nations was established "to save succeeding generations from the scourge of war," and the Security Council was given the "primary responsibility for the maintenance of international peace and security." The founders of the United Nations tried to ensure that the Council would have necessary means for discharging this responsibility, …
Reflections On Regional Human Rights Law, Gabriel M. Wilner
Reflections On Regional Human Rights Law, Gabriel M. Wilner
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The principal purpose of the Colloquium, as can be seen from the great attention given to the papers presented by the second panel, was to discuss the uses of customary international human rights law in the defense of human rights before national courts. More generally, these discussions focused on the effectiveness of customary international human rights rules in influencing legislative and policy-making, administrative decisions and, particularly, judicial adjudication, at international and national levels. The initial and wider question of the feasibility of using custom as a source of human rights rules formed the underlying aspects of the debates in the …
Sources Of International Law, Louis B. Sohn
Sources Of International Law, Louis B. Sohn
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To summarize, States can agree on international law begin made in any way they wish. Once they agree on a method, the matter is over. As I have pointed out, every few y ears we invent a new method; there is no end to ingenuity of human beings. by the year 2000, there might be one or two more methods. We are still applying the 19th century rule that international law is made by the community of states, but in every generation the community has been able to invent new methods for crystallizing international law. We finally have accepted the …
French And American Judicial Opinions, Michael Wells
French And American Judicial Opinions, Michael Wells
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In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …
Can International Law Provide Extra-Constitutional Protection For Excludable Aliens?, Louis B. Sohn
Can International Law Provide Extra-Constitutional Protection For Excludable Aliens?, Louis B. Sohn
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This paper focuses on the problems of those who do not qualify for a regular admission as refugees, but are detained at the entrance point, or are detained in the United States after being released on temporary parole or pending repatriation. The thesis I shall try to defend is that these persons must be treated according to basic rules of humanitarian law; that they are entitled to be treated as human beings, regardless of any particular legislation or administrative regulations depriving them of basic legal protection granted to citizens and regular residents of the country.
American Acceptance Of The Jurisdiction Of The International Court Of Justice: Experiences And Prospects, Louis B. Sohn
American Acceptance Of The Jurisdiction Of The International Court Of Justice: Experiences And Prospects, Louis B. Sohn
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The International Court of Justice ("ICJ" or "Court") is the successor to both the Permanent Court of Arbitration and the Permanent Court of International Justice. Before the first court was established in 1899, only ad hoc tribunals existed. This was due to a basic fact of international law that international tribunals possessed jurisdiction only if the parties to the case conferred it on the tribunal either for that case or previously by an international agreement. Therefore, the great problem of international law today is how to confer as much jurisdiction on the international court as possible. Now that the use …