Law Commons^™

Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle

Faculty Publications

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximize human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals …

Multipolarity, Intellectual Property And The Internationalization Of Public Health Law, Sam F. Halabi

Faculty Publications

This Article critically examines the proliferation of international legal agreements addressing global health threats like the outbreak of infectious diseases, tobacco use and lack of access to affordable medicines. The conventional wisdom behind this trend is that a global normative shift has occurred which has caused states to regard health as “special” and less subject to the normal rules of international law making because health threats endanger all of humanity. This Article challenges that thesis, arguing that at the same time the number and scope of international health law treaties has grown, developed states have subordinated health law to intellectual …

Rogue Debtors And Unanticipated Risk, S. I. Strong

Faculty Publications

Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass the …

Responsibility For Regime Change, Jay Butler

Faculty Publications

What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of the targeted territory is outmoded. Based on a careful examination of subsequent practice of the parties to the conventions, this Article asserts a new interpretation of these treaties and argues that regime changers are now under positive obligations in the postwar period and beyond.

Through their conduct and evaluation of modern regime-change missions, states, both individually and acting collectively through international organizations, …

The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord

Faculty Publications

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection.

The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons …

A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan

Faculty Publications

Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …

Ready, Set, Go To Federal Court: The Hague Child Abduction Treaty, Demystified, Jennifer Baum

Faculty Publications

(Excerpt)

The Hague Convention on the Civil Aspects of International Child Abduction may sound intimidating, but is easily demystified. Since 1980, signatory nations have agreed that parents should not be permitted to forum shop among countries when it comes to custody of their children. The Hague Convention requires the prompt repatriation of children under 16 years of age who were wrongfully removed by a parent from the country in which they had been living, except in certain very limited circumstances (some of which are discussed in more detail, below). The Convention does not address or permit the alteration of custody …

The Special Tribunal For Lebanon: A Defense Perspective, Charles Chernor Jalloh

Faculty Publications

A fundamental aspect of United States criminal law is the presumption of innocence until proven guilty. A corollary right gives every American a Constitutional right to counsel or the right to represent herself in person if she so chooses. In international criminal law, similar fundamental rights are theoretically offered to accused persons under the statutes of the courts and under general international human rights law. However, unlike the U.S. criminal justice system, international criminal tribunals have generally failed to honor the lofty promises contained in their constitutive instruments. But it is not the principled lack of adherence to ensuring the …

Filling The Gaps With Public Policy: The Application Of The Hague Convention Protocol In Us Courts In The Absence Of A Co-Signing State, Andrew A. Zashin, Christopher R. Reynolds, Amy M. Keating

Faculty Publications

This article will consider a possible avenue for filling 'gaps' when the 1980 Hague Abduction Convention or the 1996 Child Protection Convention do not apply in child custody/abduction cases. Specifically, it will explore utilizing internal US domestic relations law to facilitate the return of a child who has been abducted to the USA from a non-signatory country. To better illustrate the potential effects, the article will explore this 'gap filler' through the lens of a case study involving Japan, the most prominent first world country that is not yet a signatory to the Convention. The article also considers the implications …

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."

Beyond International Commercial Arbitration? The Promise Of International Commercial Mediation, S. I. Strong

Faculty Publications

Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes. One of the more popular alternatives is mediation. Advocates of mediation extol its many benefits, including its ability to resolve disputes more quickly and with fewer costs and formalities than other alternatives. However, very little research exists on how mediation operates in the international commercial context. This Essay therefore considers whether and to what extent international …

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Jerusalem In The Courts And On The Ground, Sam F. Halabi

Faculty Publications

This Article analyzes presidential speeches and the pleadings of the U.S. Government in response to a lawsuit by Jerusalem-born U.S. citizen Menachem Zivotofsky seeking to have "Israel" listed in his U.S. passport rather than "Jerusalem" as U.S. law now requires. The picture that emerges is one of a growing flexibility in U.S. policy toward Israel/Palestine in general and Jerusalem in particular. That flexibility moves away from adherence to two states (and impliedly two capitals in Jerusalem) to one emphasizing various "kinds" of democracy that may characterize a future Israeli state. Part I of this Article provides a brief summary of …

Anti-Arbitration Injunctions In Cases Involving Investor-State Arbitration: British Caribbean Bank Ltd. V. The Government Of Belize, S. I. Strong

Faculty Publications

Over the last few years, the international legal community has become increasingly interested in anti-arbitration injunctions, which are analogous to antisuit injunctions except that the former prohibits the initiation or continuation of an arbitration while the latter focuses on judicial actions. At this point, very few courts have actually issued an injunction of this type. Nevertheless, a number of commentators have expressed concern about these mechanisms, since they can wreak havoc with contractual or treaty-based expectations about how a particular dispute is to be resolved. Indeed, some scholars and practitioners would prefer that these sorts of injunctions be made universally …