Law Commons^™

Formalism And State Secrets, Sudha Setty

Faculty Scholarship

The state secrets privilege has received a tremendous amount of scholarly attention in the U.S. in the last decade. In September 2009, the Obama administration created a new policy that mandated a more rigorous internal administrative review prior to invoking the state secrets privilege. It appears as though this internal review process has resulted in little difference with regard to the invocation of the privilege at the pleadings stage in cases that allege torture and other human rights abuses. This chapter of the forthcoming comparative law volume Secrecy, National Security and the Vindication of Constitutional Law (David Cole, Federico Fabbrini …

Does Humanity Law Require (Or Imply) A Progressive Theory Of History? (And Other Questions For Martti Koskenniemi), Robert Howse, Ruti Teitel

Articles & Chapters

In a number of essays over the last decade or so, Martti Koskenniemi has analyzed post-cold war developments in international law, especially the human rights revolution or the emergence of "humanity law" (Teitel, Humanity’s Law). In these works, Koskenniemi asserts a close, if not essential, connection between optimistic or progressive theories of history and liberal, cosmopolitan, post- or anti-statist approaches to international law. We challenge Koskenniemi’s arguments that humanity law is associated with a dogmatically progressive theory of history, that it is oriented toward a world government, that it relies on a version of historical determinism, that it posits a …

Front Matter

Intercultural Human Rights Law Review

Front Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 8 (2013).

Children And The First Verdict Of The International Criminal Court, Diane Marie Amann

Scholarly Works

Child soldiers were a central concern in the first decade of the International Criminal Court; indeed, the court’s first trial, Prosecutor v. Lubanga, dealt exclusively with the war crimes of conscripting, enlisting, and using child soldiers. This article compares the attention that the court has paid to children – an attention that serves the express terms of the ICC Statute – with the relative inattention in post-World War II international instruments such as the statutes of the Nuremberg and Tokyo tribunals. The article then analyzes the Lubanga conviction, sentence, and reparations rulings. It recommends that the ICC focus attention on …

After Assad: Syria’S Post-Conflict Reconstruction, H. M. Roff

Human Rights & Human Welfare

Simon Adams and Condoleezza Rice warn us that with the portended fall of Syria's Bashar al-Assad, the country could witness even more heinous crimes and, potentially, regional political fallout. These worries are not unfounded. However, what seems to be truly missing in their discussions is any mention of post-conflict reconstruction planning. This is unfortunate, as much handwringing is still occurring over "what to do" in Syria, and it will continue until there is a clear vision of what to do after this civil war. Syria's post-conflict reconstruction plan is—or should be—inherently tied to its current operational agenda.

Myths About Syria, James Pattison

Human Rights & Human Welfare

In my contribution, I want to focus on five fallacious claims and arguments that have been presented about the conflict in Syria. (Please note that this piece was written in Dec 2012).

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Are Human Rights Redundant In The Ethical Codes Of Psychologists?, Alfred Allan

Research outputs 2013

The codes of ethics and conduct of a number of psychology bodies explicitly refer to human rights, and the American Psychological Association recently expanded the use of the construct when it amended standard 1.02 of the Ethical Principles of Psychologists and Code of Conduct. What is unclear is how these references to human rights should be interpreted. In this article I examine the historical development of human rights and associated constructs and the contemporary meaning of human rights. As human rights are generally associated with law, morality, or religion, I consider to which of forms of these references most likely …

International Law For American Courts: Why The “American Laws For American Courts” Movement Is A Violation Of The United States Constitution And Universal Human Rights, Maria Surdokas

University of Baltimore Journal of International Law

In recent years, the “American Laws for American Courts” movement has swept across the country in an attempt to ban international law from U.S. state courts. This article specifically examines the Oklahoma Save Our State Amendment and the Arizona Foreign Decisions Act. In doing so, it addresses both the constitutional and policy problems with these attempts, observing that what the states have been trying to do is neither legal nor practical. It analyzes the inability of individual states to unilaterally avoid compliance with the United States’ international law obligations. It notes the absurdity in outlawing international law in order to …

Lochner Disembedded: The Anxieties Of Law In A Global Context, Peer Zumbansen

Indiana Journal of Global Legal Studies

This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining's identification of key problems of law in a global context (2009; 2012), the following paper adopts a two-fold approach. One element is to suggest a conceptual architecture, which captures law in its transformational state through a focus on actors, norms, and processes. Second, the paper proposes case

studies as a central methodological device to explore the nature, scope, and function of governance-both legal and nonlegal-in a global context. Through the …

In The Breach: Citizenship And Its Approximations, Susan C.B. Coutin

Indiana Journal of Global Legal Studies

To analyze the forms of membership that are created in the gap between formal citizenship and social belonging, this paper takes up three examples of citizenship in the breach: (1) the 1980-1992 Salvadoran civil war, in which human rights abuses perpetrated in El Salvador effectively constituted Salvadoran migrants as stateless persons, though technically they held Salvadoran citizenship; (2) informal U.S. membership claims put forward by longtime U.S. residents who were deported to El Salvador; and (3) the legal or documentary problems that emerge when legal permanent residents, some of whom immigrated to the United States from El Salvador during the …

Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia And Central Asia, Elizabeth Clark

Faculty Scholarship

Religious freedom, among other human rights, has increasingly been restricted in Russia and Central Asia. Recent empirical research has shown that increased governmental regulation of religion causes increased social hostilities over religion and has shown the connections between religious freedom and numerous other civil rights and social goods. The U.S. government has particularly recognized the importance of religious freedom in Russia, mandating significant restrictions on aid based on the Russian interpretation of restrictive religion legislation passed in 1997. Since that time, however, virtually no attention has been given to draft legislation in this area in Russia and common trends seen …

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Faculty Scholarship

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Blood Diamonds And Non-State Actors, Ian Smillie

Vanderbilt Journal of Transnational Law

The KPCS is a unique undertaking. It has all of the bells and whistles required to be an effective watchdog for an industry prone to theft, corruption, smuggling, and violence. It currently has the power of law in almost eighty national jurisdictions, and it has the blessing of the United Nations and the WTO. It is tripartite in nature, encompassing a wide range of important industry players and civil society organizations from Europe, North America, and Africa.

It is something of a tragedy, however. Its consensus decision making process has turned it into a dozy talk shop--unwilling and unable to …

Hate Speech And Persecution: A Contextual Approach, Gregory S. Gordon

Vanderbilt Journal of Transnational Law

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia on the issue of whether hate speech alone can serve as an actus reus for CAH-persecution. This Article fills the gap in the literature by analyzing the split between the two tribunals and concluding that hate speech alone may be the …

Jus Ad Bellum, Values, And The Contemporary Structure Of International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

In “Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force,” 41 Journal of Religious Ethics 1 (2013), James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a “responsibility to protect” as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the “Westphalian system.” Yet the doctrine, at least as it relates to the use of military force, is not a reaction to that system but, rather, …

Returning Sovereignty To The People, Hallie Ludsin

Vanderbilt Journal of Transnational Law

Governments across the world regularly invoke sovereignty to demand that the international community "mind its own business" while they commit human rights abuses. They proclaim that the sovereign right to be free from international intervention in domestic affairs permits them unfettered discretion within their territory. This Article seeks to challenge those proclamations by resort to sovereignty in the people, a time-honored principle that is typically more rhetorical than substantive. Relying on classical interpretations of sovereignty, this Article infuses substance into the concept of sovereignty in the people to recognize that a government is entitled to sovereign rights only as the …

Kiobel V. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism In Retreat, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign …

Review Of Out In Africa: Lgbt Organizing In Namibia And South Africa, Chi Adanna Mgbako

Faculty Scholarship

This is a review of the book Out in Africa: LGBT Organizing in Namibia and South Africa by Ashley Currier.

State Court International Human Rights Litigation: A Concerning Trend?, Austen L. Parrish

Articles by Maurer Faculty

The brief symposium contribution explores human rights litigation in U.S. state courts under state law. Faced with higher hurdles to successfully asserting Alien Tort Statute claims in U.S. courts and reluctant to re-embrace more traditional international lawmaking, human rights advocates have begun to experiment with alternative strategies for redressing human rights violations. One strategy involves state court litigation. Some commentators believe that state courts may prove more amenable to enforcing and advancing human rights. This symposium contribution explores the parallels between the recent willingness to consider state court litigation to remedy human rights violations occurring abroad and other state court …

Greensboro And Beyond: Remediating The Structural Sexism In Truth And Reconciliation Processes And Determining The Potential Impact And Benefits Of Truth Processes In The United States, Peggy Maisel

Faculty Scholarship

Over the last 35 years approximately forty truth commissions have investigated human rights violations and abuses in a wide range of countries and communities. Each of these forty commissions provides different lessons on how investigating and testifying about past abuse can lead to healing and change. I have participated in two of the more remarkable Truth and Reconciliation processes, the first as an observer, the other as an advisor. The former is perhaps the most widely known and discussed TRC process, the one which took place in South Africa from 1996 to 1998 that examined the entire apartheid era in …

Feminism And The Future Of African International Legal Scholarship, Erika George

Faculty Scholarship

Since the American Journal of International Law published the ground-breaking article, "Feminist Approaches to International Law" by Professors Hillary Charlesworth, Christine Chinkin, and Shelley Wright in 1991, there has been significant increase in the material written about the ways in which international law has failed to take account of the challenges faced by women or to appreciate women as relevant. The aim of the article was to urge a rethinking and revising of the structures and principles that exclude most women's experiences. It highlighted the fact that feminism in the Third World was doubly at odds with the dominant male …

Kiobel: Muddling The Distinction Between Prescriptive And Adjudicative Jurisdiction, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This brief symposium Essay addresses whether and in what ways the Alien Tort Statute (ATS) constitutes an exercise of prescriptive jurisdiction by the United States to regulate conduct or an exercise of adjudicative jurisdiction by U.S. courts to entertain suit, as well as the implications of that classification. The Essay begins with a central and hotly contested focal point in ATS suits — most prominently, in Kiobel v. Royal Dutch Petroleum recently decided by the Supreme Court. Namely: how to conceptualize the applicable law in ATS suits and, more specifically, whether courts apply international law directly or some form of …

Defining Myanmar's "Rohingya Problem", Benjamin Zawacki

Human Rights Brief

No abstract provided.

From Kansas To The Congo: Why Naming And Shaming Corporations Through The Dodd-Frank Act's Corporate Governance Disclosure Won't Solve A Human Rights Crisis, Marcia Narine

Articles

No abstract provided.

Overview And Operation Of U.S. Financial Sanctions, Including The Example Of Iran, Barry E. Carter, Ryan Farha

Georgetown Law Faculty Publications and Other Works

Financial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services.

In spite of …

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.

Trademark Cosmopolitanism, Sonia K. Katyal

Faculty Scholarship

The world of global trademarks can be characterized in terms of three major shifts: first, a shift from national to global branding strategies; second, a shift from national and regional systems to harmonized international regimes governing trademark law; and third, a concurrent shift from local to transnational social movements that challenge branding and other corporate practices. The rise of transnational brands brings with it an attendant series of legal shifts in trademark law. Long considered the stepchild of intellectual property law, today, trademark law has morphed into a powerful global legal phenomenon, revealing a foundational shift from national and regional …

December 12, 2012: Bringing Wal-Mart Jobs To Michigan, Bruce Ledewitz

Hallowed Secularism

Blog post, “Bringing Wal-Mart Jobs to Michigan“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.