Law Commons^™

Finding International Law: Rethinking The Doctrine Of Sources, Harlan G. Cohen

Scholarly Works

The doctrine of sources has served international law well over the past century, providing structure and coherence during a time when international law was expanding rapidly and dramatically. But the doctrine's explanatory power is increasingly being challenged. Current doctrine tells us that treaties are international law; empirical evidence, however, suggest that treaties are poor predictors of state practice. The expansion of the international community, the rise of human rights, developments in international legal theory, and the international system's need to adapt to changing circumstances, have all also put pressure on the reified role of "treaty" in identifying rules of international …

Standard Setting In Human Rights: Critique And Prognosis, Makau Wa Mutua

Journal Articles

This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy …

Philosopher Kings And International Tax: A New Approach To Tax Havens, Tax Flight, And International Tax Cooperation, Steven Dean

Faculty Scholarship

Tax flight treaties could help to solve the $50 billion-a-year problem that tax flight (the evasion of income taxes through the use of offshore tax havens) poses for the United States. Tax flight treaties would offer tax havens a substantial portion of the increased tax revenues that they could generate by providing the United States with the enforcement assistance it needs. Those payments, potentially representing as much as half of the added tax revenue produced by tax flight treaties (and in all probability an amount that is greater than any GDP gains attributable to eliminating waste and other economic distortions …

Communications Theory And World Public Order: The Anthropomorphic, Jurisprudential Foundations Of International Human Rights, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

This Article seeks to integrate different strains of knowledge and enlightenment from contradictory and often contentious jurisprudential perspectives. Our approach is to use elements of modern jurisprudence as tools and markers for a more adequate description and intellectual justification of the foundations of modern human rights law. This focus integrates existing literature that surveys law-making outside the context of the State, including the law of non-State groups, such as Jewish Law and Gypsy Law. It also examines the relevance of communications theory to law generated (in a functional sense) by individual interaction on a face-to-face basis (which Professor Harold Lasswell …

Babes With Arms: International Law And Child Soldiers, Timothy Webster

Faculty Publications

This article examines advances in preventing children from participating in armed conflict. It references international human rights treaties, UN Security Council resolutions and jurisprudence from international courts to chart the course by which recruiting child soldiers became an international crime. At the same time, it calls on UN bodies – and the states that comprise them – to implement some of the many resolutions and veiled threats leveled at various groups and militias that use child soldiers.

Meeting Basic Survival Needs Of The World's Least Healthy People: Toward A Framework Convention On Global Health, Lawrence O. Gostin

Georgetown Law Faculty Lectures and Appearances

This article searches for solutions to the most perplexing problems in global health - problems so important that they affect the fate of millions of people, with economic, political, and security ramifications for the world's population. There are a variety of solutions scholars propose to improve global health and close the yawning health gap between rich and poor: global health is in the national interests of the major State powers; States owe an ethical duty to act; or international legal norms require effective action. However, arguments based on national interest, ethics, or international law have logical weaknesses. The coincidence of …

From A Civil Libertarian To A Sanitarian: “A Life Of Learning”, Lawrence O. Gostin

Georgetown Law Faculty Lectures and Appearances

I left Harvard 15 years ago to come to Georgetown University, formed in the year of our Constitution and established by an Act of Congress. More than Oxford or Harvard, Georgetown embodied my highest ideals of using world-class scholarship to serve the needs of the most disadvantaged. The Jesuit mission of social justice, which permeates our scholarship and teaching, has deep meaning to me. And the Jesuit ideal of “the human being fully alive,” resonates with my view of the salient importance of human health and wellbeing. The ideals of equity and human fulfilment are embodied in the inscription on …

Reviewing Charlotte Ku And Harold Jacobson (Eds.), Democratic Accountability And The Use Of Force In International Law, Russell A. Miller

Scholarly Articles

None available.

Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand

Articles

Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers …

A Domestic Right Of Return: Race, Rights, And Residency In New Orleans In The Aftermath Of Hurricane Katrina, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

This article begins with a critical account of what occurred in the aftermath of Hurricane Katrina. This critique serves as the backdrop for a discussion of whether there are international laws or norms that give poor, black Katrina victims the right to return to and resettle in New Orleans. In framing this discussion, this article first briefly explores some of the housing deprivations suffered by Katrina survivors that have led to widespread displacement and dispossession. The article then discusses two of the chief barriers to the return of poor blacks to New Orleans: the broad perception of a race-crime nexus …

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

Publications

No abstract provided.

A Domestic Right Of Return?: Race, Rights, And Residency In New Orleans In The Aftermath Of Hurricane Katrina, Lolita Buckner Inniss

Publications

This article begins with a critical account of what occurred in the aftermath of Hurricane Katrina. This critique serves as the backdrop for a discussion of whether there are international laws or norms that give poor, black Katrina victims the right to return to and resettle in New Orleans. In framing this discussion, this article first briefly explores some of the housing deprivations suffered by Katrina survivors that have led to widespread displacement and dispossession. The article then discusses two of the chief barriers to the return of poor blacks to New Orleans: the broad perception of a race-crime nexus …

Indigenous Law And Its Contribution To Global Pluralism, James Anaya

Publications

No abstract provided.

Whose Public, Whose Order? Imperium, Region, And Normative Friction, Christopher J. Borgen

Faculty Publications

Theories of international law and politics are a product of their times. They focus on the issues of the day (or of the immediate past) and their assumptions are often the assumptions of the society in which they were born. Perhaps that it is why so many international relations scholars were surprised by the end of the Cold War: Their theories were so informed by bipolarity that they were unable to see the actual changes that would transform the state system. As international relations scholars are re-assessing their theories in a post-Cold War world, lawyers may do the same concerning …

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

Scholarly Works

Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

Scholarly Works

In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …

Challenging The Assumption Of Equality: The Due Process Rights Of Foreign Litigants In U.S. Courts (Panel), Austen L. Parrish, Paul R. Dubinsky

Articles by Maurer Faculty

No abstract provided.

Book Review. Vom Volkerrecht Zum Weltrecht By Angelika Emmerich-Fritsche, Jost Delbruck

Articles by Maurer Faculty

No abstract provided.

Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

Publications

No abstract provided.

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell

Faculty Scholarship

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition -- and international law generally -- poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question …

Judging International Judgments, Mark L. Movsesian

Faculty Publications

What effect should rulings of international courts have in domestic courts? In the U.S., debate has centered on a series of rulings by the International Court of Justice (ICJ) on the application of the Vienna Convention on Consular Relations (VCCR). The VCCR, a multilateral treaty that the United States ratified in 1969, grants foreign nationals the right to seek the assistance of their consulates in the event that local authorities arrest them. An Optional Protocol to the VCCR gives the ICJ jurisdiction over disputes relating to the interpretation and application of the treaty. Since the late 1990s, the ICJ repeatedly …

Imagining Sovereignty, Managing Secession: The Legal Geography Of Eurasia's "Frozen Conflicts", Christopher J. Borgen

Faculty Publications

The interrelated concepts of sovereignty, self-determination, and the territorial integrity of states form a Gordian knot at the core of public international law. These concepts encompass not only how we define the classic actors of the international system—states—but also how seriously international law takes claims of civil and political rights. This Article considers how geographic concepts can be used to try to untangle—or slice through this knot of issues.

The frozen conflicts of Eurasia are a series of ongoing secessionist crises in the post-Soviet states of Moldova, Georgia, and Azerbaijan. I will use the example of the so-called "frozen conflict" …

The Ban On The Bomb – And Bombing: Iran, The U.S., And The International Law Of Self-Defense, Mary Ellen O'Connell, Maria Alevras-Chenl

Journal Articles

Since the March 2003, U.S.-led invasion of Iraq, rumors have persisted of a United States plan to attack Iran. Some U.S. officials are apparently willing to contemplate the use of military force to prevent Iran from developing nuclear weapons. Under international law, however, there is no right without Security Council authorization to use significant military force on the territory of another state to stop nuclear research. Knowing this, alternative arguments are being floated by those sympathetic to the plan to attack Iran. One such argument asserts that the U.S. could attack Iran on the basis of collective self-defense with Iraq …

Iraq, Secured Transactions & The Promise Of Islamic Law,, Mark J. Sundahl

Law Faculty Articles and Essays

When Iraq regains political stability, major reconstruction projects will have to be funded and local businesses will need financing in order to gain a foothold in the new economy. In order to attract the necessary capital, the Iraqi law of secured transactions must be reformed to allow for lenders to take security in the assets of their borrowers. However, the challenge of reforming Iraqi commercial law is complicated by the requirement under the new Iraqi Constitution that any new statutes enacted by the Iraqi legislature must comply with the principles of Islamic law. This Article sets forth proposals for reform …

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Climate Change, Adaptation, And Development, Daniel H. Cole

Articles by Maurer Faculty

Since the signing the Kyoto Protocol, the international community has focused a great deal of attention on measures designed to reduce emissions of greenhouse gases. Much less attention has been paid to climate change adaption. This is unfortunate because, even if the Kyoto Protocol is fully implemented, climate change will generate substantial costs requiring substantial adaptation efforts, especially in the less developed countries (LDCs) of the world's tropical regions.

This paper considers what those countries should be doing in preparation for the effects of climate change, and what the countries of the developed world, including the United States, can and …

Preserving The Peace: The Continuing Ban On War Between States, Mary Ellen O'Connell

Journal Articles

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the …

Balancing Lives: Individual Accountability And The Death Penalty As Punishment For Genocide (Lessons From Rwanda), Melynda J. Price

Law Faculty Scholarly Articles

The purpose of this Article is not to answer the question of whether the death penalty is an appropriate punishment for genocide. One could safely argue that there is an emerging norm in international law against the death penalty, but individual countries have maintained their right to use the death penalty and continue to do so in code and in practice. This Article, using Rwanda as a case study, evaluates the real outcomes of such discrepancies in punishment at the domestic and international level, and the ability of both approaches to bring justice to the victims of genocide. Both domestic …

The U.N. Disability Convention: Historic Process, Strong Prospects And Why The U.S. Should Ratify, Tara J. Melish

Journal Articles

On December 13, 2006, the United Nations General Assembly unanimously adopted the Convention on the Rights of Persons with Disabilities. The Convention is historic and path-breaking on several levels, both in protection terms for the world's 650 million persons with disabilities who may now draw upon its provisions in defense of their internationally-protected rights, and in relation to the unprecedented level of civil society input and engagement in the negotiation process. This sustained and constructive engagement has given rise to a dynamic process of dialogue, cooperation, and mutual trust that will fuel monitoring and implementation work, at national and international …

The Future Of International Law: Members' Reception And Plenary Panel, Georgetown University Law Center – Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

It is a privilege to follow Judge Owada and to take up the challenge offered by the theme statement of this panel: to assess trends that we perceive to be shifting the future of international law, while also interrogating claims of their newness. Perhaps everything that we think of as new has some resonance with the past.