Law Commons^™

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Scholarly Works

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

The American Challenge To International Law: A Tentative Framework For Debate, Harlan G. Cohen

Scholarly Works

The United States often appears hypocritical in its commitment to International Law. It supports Nuremberg, Yugoslavia, and Rwandan tribunals, but opposes the International Criminal Court. It supports the creation of the United Nations, but seeks unilateral action in Iraq. This Essay explores these seeming contradictions in American stances toward international law. It argues that while such apparent hypocrisy might be explained by mere pragmatism, ideas prevalent in American foreign policy history seem to point in a more dangerous direction, that such divergent actions may actually be informed by a coherent, specifically American conception of international law. In particular, this Essay …

Trademarks Under The North American Free Trade Agreement (Nafta) With References To The New Trademark Law Of Spain, Effective July 31, 2002, And The Current Mexican Law, Roberto Rosas

Faculty Articles

A trademark is any distinctive sign indicating that certain products or services have been manufactured or rendered by a specific person or company. This concept is currently recognized worldwide; however, the origin of trademarks dates back to antiquity when artisans placed their signatures or “marks” on their products containing an artistic or utilitarian element. Through time, these marks have evolved to such an extent that today, a reliable and efficient system for their registration and protection has been established. Besides protecting owners of trademarks, this system also helps consumers identify and purchase goods or services, which, because of the essence …

Who Owns The Rules Of War? The War In Iraq Demands A Rethinking Of The International Rules Of Conduct, Kenneth Anderson

Popular Media

The war in Iraq requires a rethinking of the rules of conduct in war, international humanitarian law. The nature of asymmetric warfare in the conflict has turned out to be less a question of technological disparities than the weaker side turning to systematic violations of the laws of war as its method. Over time, we risk creating an international system in which it is tacitly assumed and permitted that the weaker side fight using systematic violations of the law as its method. Part of this trend arises from the biases of 1977 Protocol I which blessed activities of irregular forces …

A Solution To The Yahoo! Problem? The Ec E-Commerce Directive As A Model For International Cooperation On Internet Choice Of Law, Mark F. Kightlinger

Law Faculty Scholarly Articles

In May 2000, a French court decided that a French law banning the display of Nazi materials for sale applies to an auction website hosted by the California-based company Yahoo! Inc. The following year, at the request of Yahoo! Inc., a U.S. District Court declared that the French judgment was unenforceable in the United States because enforcing it would violate an important public policy-the First Amendment. These two cases have attracted considerable attention because they crystallize a difficult problem. The Internet is global. Every website potentially reaches every home on the planet. Thus, website content or activity that may be …

Recent Developments In International And Comparative Law And Feasible Alternatives To The Use Of Force In Contemporary International Law, Sompong Sucharitkul

The Sompong Sucharitkul Center for Advanced International Legal Studies

Last year, Golden Gate presented "A Survey of Progressive Developments of International Law and Order since the events of 11 September 2001 ". This year, a further succession of events have taken place that warrant a fresh examination of "Recent Developments in International and Comparative Law on the Urgent Necessity for Feasible Alternatives to the Use of Force in Contemporary International Law." An imminent and impending threat of the preemptive use of force to prevent war and continuing deployment of forces poised to strike as if to demonstrate that the only plausible means to achieve the ultimate peace is to …

Surprised By Sin: Human Rights And Universality, Tawia Baidoe Ansah

Faculty Publications

International human rights law's claim to universality, at the level of normative formation, has been shaped by conceptions of the self over time. The metaphysical reconfigurations of the self, from the Enlightenment to the present, have marked the human rights narrative in particular ways. This essay will suggest that since World War II, a conception of the self within a narrative of rights has been replaced, or at least countermanded, by a conception of sacral evil, with profound implications for the normative claim to universality of the human rights discourse. The essay begins with a synoptic analysis of the rise …

The Cracked Foundations Of The Right To Secede, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

War: Rhetoric And Norm-Creation In Response To Terror, Tawia Baidoe Ansah

Faculty Publications

Everything is very simple in war," said Carl von Clausewitz, "but the simplest thing is difficult." This essay will suggest that the resort to the language of war, as "natural" and "starkly simple" as it is, nevertheless has a profound impact on how the law's intervention is shaped, or how the laws governing the transnational use of force are interpreted to accommodate a "war" on terrorism. I argue that although "war" is absent from the principal international legal instruments by which states are guided (and obligated) in their relations with other states, the concepts suppressed by this elision have an …

Agora: Future Implications Of The Iraq Conflict: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The military action against Iraq in spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century. As with the great debates surrounding U.S. involvement in the two world wars, the establishment of the United Nations, and the challenges to UN Charter norms during the Cold War, this Journal seeks to provide a forum for reasoned and respectful treatment of legal issues that have aroused fierce passions.

Democrativ Principles And Separatist Claims: A Response And Further Inquiry, Diane Orentlicher

Articles in Law Reviews & Other Academic Journals

Donald Horowitz has grounds for concern about legal innovations that may provide fresh inspiration to separatist movements. It is baffling, however, that he attributes proseparatist views to me. I will try here to clarify the principal sources of misunderstanding and hope, along the way, to deepen our consideration of issues that are well worth further exploration.

International Responses To Separatist Claims: Are Democratic Principles Relevant?, Diane Orentlicher

Articles in Law Reviews & Other Academic Journals

Although a perennial feature of global politics, separatist movements had scant prospect of success for nearly half a century after World War II. And so the recent proliferation of new states has shattered settled expectations. In the 1990s, Yugoslavia fractured into five states, the Soviet Union split into fifteen, Eritrea separated from Ethiopia, Czechoslovakia divided into the Czech Republic and Slovakia, and East Timor won independence from Indonesia. The success of breakaway movements from Slovenia to Eritrea has given new impetus to a raft of other separatists across the globe. And small wonder: the surge in state making in the …

Jurisdiction To Adjudicate And Jurisdiction To Prescribe In International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

Direct jurisdiction over individuals, along with responsibilities to them, are outstanding characteristics of the new International Criminal Court (ICC or Court), as they already are of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). This Article raises issues of legitimate power to prosecute and to define criminal law and issues of individual human rights which necessarily arise in any criminal system.

This Article is predominantly an analysis of issues of criminal jurisdiction over persons as they are treated in the ICC Statute, as well as in the current ad hoc international criminal tribunals. Part II …

Revolt Against Or From Within The West?: Twail, The Developing World, And The Future Direction Of International Law, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

The Duty To “Expect The Unexpected”: Mitigating Extreme Natural Threats To The Global Commons Such As Asteroid Impacts With The Earth, Evan R. Seamone

Journal Articles

This Article develops a framework to govern the interactions of nations cooperating to mitigate the threat of unexpected natural disasters that potentially could affect them all. It uses asteroid impact with the Earth as the representative example because this is an "unusual and extreme" disaster that has created difficulty for lawmakers due to its many unanswerable questions. By explaining a number of the legal requirements necessary to mitigate such threats, this Article identifies legal principles that apply equally to natural threats throughout the global commons. The law involved in this analysis arises, in great part, from the judicial recognition of …

Reenchanting International Law, Mark C. Modak-Truran

Journal Articles

I will argue that international law needs religion because it is indeterminate and that international law should not attempt to resolve legal indeterminancy because this would require establishing an official international religion. Given the limitations of this article, however, I will not attempt to provide a comprehensive normative and descriptive account of law and international law to support this claim." My more modest expectations are to provide a normative theory of law to justify the interpretation of international law in cases in which international law is indeterminate.

Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel

Articles

Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …

A Hydrogeological Approach To Transboundary Ground Water Resources And International Law, Gabriel Eckstein, Yoram Eckstein

Faculty Scholarship

Ground water resources have long been the neglected stepchild of water law. While agreements focusing on transboundary rivers and lakes have been relatively common, there is a paucity of treaties and international norms squarely addressing shared ground water resources. As a result, the rules governing the use, management, and conservation of transboundary ground waters is unclear at best.

This dearth is, in large part, the result of a deficit of scientific understanding among legislators, policymakers, and the judiciary. This is evidenced in many international and domestic laws and policies that have little or no scientific underpinning. Accordingly, there is a …

Assessing International Criminal Adjudication Of Human Rights Atrocities, Diane Marie Amann

Scholarly Works

These remarks were presented on January 5, 2001, as part of a panel on international criminal adjudication at a conference entitled "Into the 21st Century: Reconstruction and Reparations" in Cape Town, South Africa.

The United States joined a number of countries that rushed to sign the treaty to establish the International Criminal Court. They included states like Yemen, Iran, and Israel. These three, along with the United States, were among the few that had refused to vote in favor of the treaty when it was adopted at a diplomatic conference in Rome in 1998. By the end of 2000, 139 …

Lessons From Nepal: Partnership, Privilege And Potential, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Dramatic differences in culture present students with the opportunity to gain considerable perspective on their own perceptions and a chance to operate in a legal environment that, like most endeavors in the world today, has become increasingly globalized. This kind of experience has generally been missing in the training of our university law students. The students in Washington University's Civil Justice Clinic have provided legal services to women and children who have been victims of violence in a wide array of socio-economic settings. They have also worked on policy initiatives that shape government on city, state and federal levels. But …

Tribute To Harold Jacobson, John H. Jackson

Georgetown Law Faculty Publications and Other Works

Harold Jacobson was not only a fine scholar and excellent teacher who devoted a career to the University of Michigan, but he was also a very trusted colleague and a close friend. His scholarly work was very well recognized and admired. He was one of my colleagues while I taught at Michigan, to whom I willingly recommended students for a multidisciplinary approach to international relations. He was a theorist of political science and international relations who was willing and able to come to grips with the role of law in those fields.

The Van Ert Methodology Of Domestic Reception, Jamie Cameron

Articles & Book Chapters

A review of Gibran van Ert's book: Using International Law in Canadian Courts. This review approaches the author's methodology of domestic reception from a constitutionalist's perspective.

The Interface Of National Constitutional Systems With International Law And Institutions On Using Military Force: Changing Trends In Executive And Legislative Powers, Lori Fisler Damrosch

Faculty Scholarship

The perplexities of the twenty-first century over national decision-making in support of international security are an outgrowth of centuries-long trends concerning subordination of military power to constitutional control. Civilian control over the military has been inextricably connected with the strengthening of domestic constitutionalism and safeguards for citizens' liberties in many different democracies.

Along with the establishment of constitutional structures for regulating national military power, national constitutions have contributed to the evolution of contemporary international law prohibiting the use or threat of force in international relations. Milestones along this path begin with the French Constitution of 1791 – the first national …

Subsidiarity As A Structural Principle Of International Human Rights Law, Paolo G. Carozza

Journal Articles

This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves.

Looking at …

Agora (Continued): Future Implications Of The Iraq Conflict: Editors' Note, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

This Agora continues the discussion of future implications of the Iraq conflict begun in the previous issue of the Journal. While the contributions to the first installment of the Agora concentrated mainly on the decision to initiate combat against Iraq in spring 2003 and the implications thereof for the restraints on use of force in the UN Charter and customary international law, the present pieces shift the focus to the management of the transition within Iraq in the aftermath of the military intervention.