Law Commons^™

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international …

Human Shields, Homicides, And House Fires: How A Domestic Law Analogy Can Guide International Law Regarding Human Shield Tactics In Armed Conflict, Douglas H. Fischer

American University Law Review

No abstract provided.

Mortgage Law In China: Comparing Theory And Practice, Gregory M. Stein

Missouri Law Review

This Article examines Chinese mortgage law as it actually operates in the field, focusing on both legal and business issues. During the summer of 2005, I interviewed dozens of Chinese and Western lawyers, bankers, real estate developers, government officials, judges, economists, real estate consultants, law professors, business professors, real estate agents, law students, and recent homebuyers. Their comments offer reliable insights into how China's real estate markets truly function. The discussion that follows draws on these conversations to examine China's budding mortgage law practices, including how they developed, how they comport with or differ from written laws, and what questions …

Sovereignty Migrates In Us And Mexican Law: Transnational Influences In Plenary Power And Non-Intervention, Ernesto Hernandez-Lopez

Ernesto A. Hernandez

Mexico and the US exercise increasingly transnational, less absolute, sovereignty with respect to migration. This is evident in changes to Mexico's norm of non-intervention (NIV) and the US' plenary power doctrine (PPD), two doctrines sourced in international sovereignty. Both historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. NIV prohibits Mexican foreign relations from interfering in another state's domestic affairs. Traditionally it barred a foreign policy on migrants in the US, leading to Mexico's 'no policy' on migrants. PPD labels immigration law as immune from judicial review because the political branches have complete, 'plenary,' authority …

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 …

Us Policy On Small Arms Transfers: A Human Rights Perspective, Susan Waltz

Human Rights & Human Welfare

From Somalia and Afghanistan to Bosnia, Haiti, Colombia, Rwanda, Sierra Leone, Liberia and Congo, small arms and light weapons were a common feature of the human rights calamities of the 1990’s.

© Susan Waltz. All rights reserved.*

*A shorter version of this paper is published as “U.S. Small Arms Policy: Having It Both Ways,” in the Summer 2007 issue of World Policy Journal.

This paper may be freely circulated in electronic or hard copy provided it is not modified in any way, the rights of the author not infringed, and the paper is not quoted or cited without express permission …

Eric K. Leonard On Atrocity, Punishment, And International Law By Mark A. Drumbl. New York, Cambridge University Press, 2007. 316 Pp., Eric K. Leonard

Human Rights & Human Welfare

A review of:

Atrocity, Punishment, and International Law by Mark A. Drumbl. New York, Cambridge University Press, 2007. 316 pp.

Litigating Canada-U.S. Transboundary Harm, Austen L. Parrish, Shi-Ling Hsu

Austen L. Parrish

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of interna-tional law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in way that impact American interests. This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

Combating Corruption Through International Law In Africa: A Comparative Analysis, Thomas R. Snider, Won Kidane

Cornell International Law Journal

No abstract provided.

Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman

Law and Contemporary Problems

In a sense, all debts are odious; that is, to use dictionary definitions, "hateful; disgusting; offensive." Yet insofar as international economic law today is concerned, only a certain few debts can be considered "odious debts" in order to contest and perhaps eventually to repudiate them. Here, Feinerman examines the concepts of odious debt and related international legal phenomena, in both historical and contemporary context, with a view of determining the role that denomination of certain debts as odious may play in the overall process of sovereign debt rescheduling.

The Implications Of Unclos For Canada's Regulatory Jurisdiction In The Offshore-The 200-Mile Limit And The Continental Shelf, Keith F. Miller

Dalhousie Law Journal

The author examines the current state of international law governing Canada's sovereignty and jurisdiction over the exploitation of hydrocarbons within its continental shelf. These rights are reviewed from a historical perspective through theprogression ofinternational conventions, the decisions ofinternational tribunals and the enactmentof Canadian federal laws. The article includes anexamination of Canada's rights under international law respecting its 200-nautical-mile exclusive economic zone and the continental shelf beyond, as well as a review of Canada's maritime boundary disputes with adjacent coastal states.

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

Intellectual Property Piracy: Perception And Reality In China, The United States, And Elsewhere, Aaron Schwabach

Aaron Schwabach

The article is intended as a counterpoint to the all-too-frequent portrayal of China as the world’s leading violator of intellectual property rights. In fact, by many measures China, taken as a whole, is not the leading violator. Some measures show China as the leading violator only because they are aggregates, and do not take into account China’s size. When figures are adjusted for population, China’s rates of intellectual property violation are lower than those of many other countries, including the United States. The article first looks at examples of the current round of political and media China-bashing. It then examines …

Young, Illegal, And Unaccompanied: One Step Short Of Legal Protection, Raya Jarawan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Chinese Land Use Right Is It Property, Gregory M. Stein

Scholarly Works

No abstract provided.

Childsoldiers,Slavery, And The Trafficking Of Children, Susan W. Tiefenbrun

Susan W Tiefenbrun

Despite a proliferation of international human rights treaties, labor laws, and humanitarian laws that should provide children with special protection from abduction into child soldiering, the trafficking of children and their use as soldiers is increasing. This paper will examine the relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of child soldiers. Part II will examine the international and domestic laws that protect against the use of children as soldiers. Part III will examine two literary representations of the use of child soldiers and the significant insights such …

Debt To Odious Finance: Avoiding The Externalities Of A Functional Odious Debt Doctrine, Christiana Ochoa

Christiana Ochoa

Christiana Ochoa* Abstract The Odious Debt Doctrine has limped along in the legal imagination for over 100 years and by some estimates even since Aristotle. In recent years, and particu-larly in recent months, legal theorists and practitioners have attempted to define the contours and details of this controversial and undeveloped doctrine. This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the spill-over effects and externalities that would ensue if this doctrine were ever made regularly operative. Many commentators have noted the in-creased costs of borrowing and lending that would result from the doctrine. …

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 …

Insolvency Principles And The Odious Debt Doctrine: The Missing Link In The Debate, A. Mechele Dickerson

Law and Contemporary Problems

Politicians as well as many members of the international human-rights community, view the odious debt doctrine as fundamentally unfair that the Iraqi people may be saddled with the debts Saddam Hussein's brutal regime incurred. Furthermore, some in the human-rights community generally argue that rich (creditor) countries have a moral duty or obligation to protect citizens of poor (debtor) countries and that richer nations should forgive the debts of poorer nations to help reduce existing inequalities between developed and developing countries. Here, Dickerson evaluates the doctrine of odious debts using the insolvency framework found in the United States Bankruptcy Code.

Odious, Not Debt, Anna Gelpern

Law and Contemporary Problems

The US invasion of Iraq in 2003 revived public and academic debate about a wobbly old doctrine of international law: the Doctrine of Odious Debt. This doctrine allows governments to disavow debts incurred by their predecessors without the consent of or benefit for the people, provided creditors knew of the taint. It has roots in nineteenth century jostles over colonial possessions. However, for the past eighty years, Odious Debt's rhetorical appeal has vastly outstripped its "legal vitality." Here, Gelpern argues that the Doctrine of Odious Debt frames the problem of odious debt in a way that excludes a large number, …

Odious Debt, Odious Credit, Economic Development, And Democratization, Tom Ginsburg, Thomas S. Ulen

Law and Contemporary Problems

When a country signs an international treaty, it is not the government but the state that is bound, and the obligation will stand until a subsequent government formally exits the treaty. Exit is presumed to be costly: a government that "repudiates" earlier treaty obligations will suffer reputational harm in its international relations. Moreover, this general background norm of international law applies as well to debt: a government can announce that it is renouncing debt, but it will suffer severe reputational harm in the debt marketplace, much as a government that repudiates public international law obligations suffers a reputational harm. Here, …

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

Law and Contemporary Problems

Several issues relating to odious debt and contemporary efforts to expand the odious debt doctrine to cover all debts of odious regimes are maddeningly complex, implicating difficult issues in areas ranging from the international law of state succession to the law of commercial paper--itself a source of biannual trauma for thousands of bar aspirants. However, the scope of the debate as it has been developed in the literature is too narrow and, therefore, the questions posed too simple. In particular, any analysis of odious debt must account for issues that inhere to transitions and transitional justice. Here, Gray make some …

The Institutionalist Implications Of An Odious Debt Doctrine, Paul B. Stephan

Law and Contemporary Problems

Sovereigns incur debts, and creditors look to the law to hold sovereigns to their obligations. In legal terms, the question is whether to recognize and define an odious debt defense through a treaty or national legislative acts, on the one hand, or through the decisions of authoritative dispute-settlement bodies, whether international arbitral organs or domestic courts. Moreover, others may think that odious debt doctrine as a means can optimize the social welfare generated by sovereign-debt contracts. Here, Stephan examines the social welfare in the economic sense but attacks the problem from a different direction and concludes that no satisfactory mechanism …

Renegotiating The Odious Debt Doctrine, Tai-Heng Cheng

Law and Contemporary Problems

Following the United States' invasion and subsequent occupation of Iraq,' the US government argued that the successor government in Iraq was not responsible for Iraq's Saddam-era debt under the purported doctrine of odious-regime debt. This purported doctrine apparently excused--by operation of law--all successor regimes from repaying debts that were incurred by oppressive predecessor regimes. Here, Cheng presents three-part response regarding the purported rule that oppressive debts of a predecessor government do not bind its successor.

A Critique Of The Odious Debt Doctrine, Albert H. Choi, Eric A. Posner

Law and Contemporary Problems

Choi and Posner indicate that it is unclear whether the doctrine will improve the welfare of the population that might be subject to a dictatorship in terms of the odious debt doctrine. The traditional backward-looking defense of the odious debt doctrine, which suggests that the doctrine is costless because it releases a suffering population from an unjust debt, is seriously incomplete. Although in specific cases the benefits of loan sanctions may exceed the costs, the defenders of the doctrine have not made the empirical case that the net benefits are sufficiently high in the aggregate as to warrant routine application …

Sovereigns, Trustees, Guardians: Private-Law Concepts And The Limits Of Legitimate State Power, Jedediah Purdy, Kimberly Fielding

Law and Contemporary Problems

One major tradition of understanding the powers and duties of sovereigns has particular relevance to arguments for revival and refurbishment of the odious debt doctrine. Here, Purdy and Fielding survey the critical role of private-law concepts in the development of this tradition. In this account, the state is a constructed and purposive legal actor, composed of a set of powers assigned by its subjects for the pursuit of certain human interests and bound by the obligation to secure and respect those interests. Moreover, they narrate that if there are inherent powers in a sovereign, they are only those that are …

Law, Ethics, And International Finance, Lee C. Buchheit

Law and Contemporary Problems

Cross-border financial flows can have dramatic effects on the recipients of the money--for good or for ill. This is particularly true in countries whose economies and capital markets are underdeveloped. Moreover, ethical questions about who should receive cross-border financing, in what amounts, for what purposes, and on what conditions have long engaged the attention of international financial institutions such as World Bank, the International Monetary Fund, and the regional development banks. Here, Buchheit analyzes a difficult area where law and ethics have not yet found a happy coexistence--the problem of odious debts.

Can International Law Survive The 21st Century - Yes: With Patience, Persistence, And A Peek At The Past, Dana Zartner Falstrom

San Diego International Law Journal

With the end of the Cold War-the principal international political framework that shaped the international system since the end of WWII-an increasing number of global tensions have arisen which have brought to the fore questions about the ability of existing international law to provide a guiding framework for state behavior. Debates over the limits of state sovereignty, the appropriateness of humanitarian intervention, the justness of pre-emptive war, the definition of self-defense, the legality of replacing a government in the interests of your ideals, and how to deal with terrorism have dominated discussions around the world. Moreover, these discussions have caused …

But Is It Law? An Analysis On The Legal Nature Of The Kimberley Process Certification Scheme On Conflict Diamonds And Its Treatment Of Non-State Actors, Kimberly J. Curtis

Kimberly J Curtis

In 2003, faced with the growing problem of illicit diamonds funding conflict and human rights abuses in Africa, representatives from states, the diamond industry and civil society formed the Kimberley Process Certification Scheme to regulate the flow of the so-called conflict diamonds. Since then, the agreement has developed into an authoritative legal agreement and enforceable regime. It demonstrates an example of a soft law agreement that through state practice, has been elevated to a higher level of obligation in international law.

The Kimberley Process also illustrates a growing trend in international law to incorporate non-state actors, particularly multinational corporations, into …

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 …