Law Commons^™

Atca, Doe V. Unocal: A Paquete Habana Approach To The Rescue, John Haberstroh

ExpressO

The article's centerpiece is the Ninth Circuit litigation (Doe v. Unocal) charging Unocal Corp. with complicity in the Burma’s government’s use of forced labor. The article first examines the Alien Tort Claims Act, under which the action is brought, through an exploration of that statute’s original purpose and historical context. The article then looks at the modern revival of ATCA in international human rights claims, and finally closely considers the Unocal litigation, in particular the September 18, 2002 decision favoring the plaintiffs. (The 2002 decision is undergoing review by an en banc panel of the Ninth Circuit, with the panel’s …

The Immunity Of Foreign Subsidiaries Under The Foreign Sovereign Immunities Act, Melissa M. Lang

ExpressO

No abstract provided.

In The Name Of National Security Or Insecurity?: The Potential Indefinite Detention Of Non-Citizen Certified Terrorists In The United States And The United Kingdom In The Aftermath Of September 11, 2001, Dana L. Keith

ExpressO

No abstract provided.

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

ExpressO

Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

ExpressO

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War.  The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.

The Guise Of Justice: Jurisdiction & Extradition Of Osama Bin Laden & Al Qaeda Terrorists, Matthew Greenwell

ExpressO

No abstract provided.

The Military -Judicial Nexus In Response To Terrorism: Kkk And Alqaeda, Wayne Mccormack

ExpressO

In considering the validity of "enemy combatant" status and military detention for alleged terrorists, several additional propositions emerge. Indefinite military detention of a US citizen arrested on US soil for a domestic crime is far beyond the pale of basic constitutional underpinnings. With respect to noncitizens and citizens captured overseas, military power is arguable but far from solid. In that event, why not take the route that does the least disruption to our system? Second, because the law abhors incoherence, we should be able to make coherent distinctions among alleged terrorists for the purpose of deciding who is tried in …

Democracy's Global Quest: A Noble Crusade Wrapped In Dirty Reality?, Andrew K. Coleman, Jackson Nil Maogoto

ExpressO

The end of the Cold War and the apparent "victory" of democracy witnessed a dramatic increase in the number, diversity and proportion of states formally committed to democratic principles. Prominent international law scholars argued vigorously that representative government was now an international legal entitlement.

It is debatable that a right to pro-democratic action, that is intervention to promote democracy exist. The determined reaction of the United Nations and the Organization of American States to the September 1991 overthrow of popularly-elected Haitian President Jean-Bertrand Aristide, and the attendant discussion within the Organization of American States about the possible use of force …

The Last Line Of Defense: The Doctrine Of Command Responsibility, Gender Crimes In Armed Conflict, And The Kahan Report (Sabra & Shatilla), Sherrie L. Russell-Brown

ExpressO

“THE LAST LINE OF DEFENSE” addresses using the doctrine of command responsibility - the doctrine according to which military and non-military leaders can be held individually criminally responsible for the crimes committed by their subordinates - before the International Criminal Court (ICC) as a way to prevent gender crimes in armed conflict. The prevention of gender crimes in armed conflict is an important issue for a variety of reasons. One extremely important reason is the connection that the United Nations has cited between the AIDS pandemic in Sub-Saharan Africa and rape in armed conflict. In addition, in the August 25, …

Discourse In Development: Viewing The United Nations Committee On Economic, Social And Cultural Rights Through The Post-Colonial Lens, Beth Lyon

Working Paper Series

This article uses post-colonial theory to examine the cluster of international human rights known as economic, social and cultural rights. The article surveys the jurisprudence of the UN Committee on Economic, Social and Cultural Rights, making it relevant for scholars of international human rights as well as post-colonial theory.

Traditionally, international human rights divide into two branches: 1) civil and political rights, and 2) economic, social and cultural rights (ESCRs). ESCRs were virtually ignored during the cold war era, but they now receive expanded attention at the international and regional levels. The creation of the UN Committee on Economic, Social …

Multilateral Environmental Agreements And The Compliance Continuum, Teall E. Crossen

ExpressO

This paper responds to the observation that despite the high number of multilateral environment agreements (“MEAs”), and relatively high compliance rate, the global commons are continuing to deteriorate. I review the contemporary literature addressing the question: "why nations comply with international law," focusing specifically on MEAs. The competing schools of thought are organized along a "compliance continuum," – bordered at one end by the Chayesian approach advocating managing compliance, and the Downsian view at the other, arguing for enforcement when there are high incentives to defect.

In sum, my conclusions are (1) adequately responding to global environmental problems requires increasing …

Ecocide And Genocide In Iraq: International Law, The Marsh Arabs And Environmental Damage In Non-International Conflicts, Aaron Schwabach

ExpressO

In 1991, after the first Gulf War, the Marsh Arabs of southern Iraq rose up against the Hussein government, with U.S. encouragement. The rebellion failed; in retaliation the government embarked on a massive water diversion project to drain the wetlands. In 1970 the wetlands covered nearly 11,000 square kilometers; today they cover fewer than a thousand. The Marsh Arabs whose ancestors had lived in the wetlands for five thousand years were forced to flee; many died. The drainage of the wetlands was a deliberate and calculated act of genocide and ecocide. At the time, Iraq was a party to several …

Bridging The “Divide” Between Feminism And Child Protection Using The Discourse Of International Human Rights , Sherrie L. Russell-Brown

ExpressO

“Bridging the Divide” is an essay that addresses the perceived tension or “divide” between feminism and child protection. While, in theory, women’s and children’s rights are not necessarily antithetical, the policies that have been devised (allegedly to preserve and promote those rights) are, at times, at odds. For example, the policy of social services to remove a child from the home of the mother, rather than assist both mother and child by the creation of a better home environment, is certainly at odds with rights of the mother. To simplify the issue greatly, the right of women to have and …

The Cambodian Amnesties: Beneficiaries And The Temporal Reach Of Amnesties For Gross Violation Of Human Rights , Ronald C. Slye

ExpressO

This article uses the two amnesties granted by the Cambodian government in 1994 and 1996 to explore two important legal issues raised by amnesties generally: 1) to whom is the amnesty granted; and 2) for how long will the amnesty last.

The first issue addresses the beneficiary question – who is able to take advantage of an amnesty. The most interesting issue raised by the beneficiary question is whether an amnesty should be restricted to either superiors or subordinates. The article discusses this choice in the context of the Cambodian amnesties, other amnesties, and international law, and highlight the moral, …

Http://Www.Companynamesucks.Com: The Horizontal Effect Of Fundamental Rights On Private Parties Within Autonomous Internet Law, Vaios Karavas, Gunther Teubner

ExpressO

Much critique has recently been raised over the role played by ICANN Panels, when they adjudicate disputes over domain names. This article deals with the highly contentious question, whether or not ICANN Panels should or may enforce fundamental rights (e.g. free speech rights) against private parties within the legal order of ICANN, understood by us as semi-autonomous. Our thesis in this regard is that ICANN Panels in fact concretise fundamental rights within Cyberspace on the basis of a fiction. They draw upon the fiction of a "common core" of globally applicable principles of law, which include even human rights. Building …

Institutional And Substantive Reform Of The Anti-Dumping And Subsidy Agreements – Lessons From The Israeli Experience, Arie Reich

ExpressO

This article proposes several amendments to the Anti-Dumping (AD) Agreement and the chapter on Countervailing Duties (CVD) of the Subsidies Agreement, drawing from the experience of the State of Israel in AD and CVD administration over more than a decade. In particular, the Article argues for the need for international regulation of the institutional settings of such administration within Member States. To this end, provisions should be added to the relevant WTO agreements that relate to the nature and composition of the national administering authorities, with the guiding principle being to ensure independence of the authorities and objectivity, fairness and …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

International Poverty Law: A Response To Economic Globalization, Timothy K. Kuhner

ExpressO

This paper is directed at poverty lawyers and, more generally, anyone with an interest in the relationship between poverty and globalization. In this paper, I argue that poverty law needs to expand its scope in order to encompass the international dimensions of poverty, and to thereby become responsive to the current nature of poverty. This need is evident, because wealth and poverty have been globalized, domestic issues have become international issues, and international issues have become domestic issues and produced domestic changes. After establishing these premises, I describe five areas of research and advocacy, each of which is located within …

Punitive Damages: A Comparative Analysis, John Y. Gotanda

Working Paper Series

In light of expanding international trade, it is increasingly likely that politicians, courts and tribunals will wrestle with whether punitive damages are appropriate in transnational disputes, and whether countries that traditionally do no allow exemplary relief should recognize and enforce foreign awards of such damages. Furthermore, by seeing how different systems address these problems, we can gain a deeper understanding of the role of punitive damages in our own legal system and be better able to deal with punitive damages issues in the international arena. This Article undertakes a thorough comparative study of punitive damages in common law countries. It …

Interim Measures In International Commercial Arbitration: Past, Present And Future, Sandeep Adhipathi

LLM Theses and Essays

This work is a comparative study of the availability and handling of interim measures in international commercial arbitration in different legal systems. It studies the difference in handling of interim measures and the need for a harmonized structure. It also contains a review of the proposed draft amendment to the UNCITRAL Model Law and further suggests a different version for the amendment.

Used, Abused, Arrested And Deported: The Case For Extending Immigration Benefits To Protect Victims Of Trafficking And Secure Prosecution Of Traffickers, Dina F. Haynes

ExpressO

Trafficking is a hot issue, and as such, there have been a number of articles written on the issue. My article, however, is unique in many respects.

I address this article from my perspective of working directly with the governments of Bosnia, Croatia, Serbia and Montenegro to combat escalating trafficking in their countries over the course of four years in the Balkans.

This is the first article that pinpoints errors that governments continue to make in preparing legislation and anti-trafficking programs,

The first to enumerate proposals for enhancing victim protection measures,

The first to identify how enhancing victim protection will …

Imf Conditionality As Investment Regulation - A Theoretical Analysis, Daniel R. Kalderimis

ExpressO

This article examines the intersection between the International Monetary Fund (“IMF”) and foreign investment. Although the IMF was not originally designed to regulate foreign investment, IMF policies have famously required capital account liberalization as a condition for access to IMF credit. This article explores the implications of such conditionality and finds it problematic. Investment conditionality is outside the IMF’s mandate, difficult to reconcile with other existing investment regulation instruments, inimical to democracy and potentially destabilizing to the debtor country, and ineffective at ensuring long-term stable change. These conclusions necessitate a reappraisal of the governance and operations of the IMF.

Examining The (Non-)Status Of Ngos In International Law, Kerstin Martens

Indiana Journal of Global Legal Studies

No abstract provided.

Reservations, Human Rights Treaties In The 21st Century: From Universality To Integrity, Pierrick Devidal

LLM Theses and Essays

This thesis is a study of the question of the legality of reservations to international human rights treaties. The evolution of reservations law demonstrates that the system seek to promote universal adherence to multilateral treaties through flexible rules that reflects the superiority of national sovereignty in the international society. However, the flexibility of reservation law as codified in the Vienna Convention of the Law of Treaties has facilitated wide acceptance of multilateral treaties at the cost of their integrity. In the case of human rights treaties, this issue is of paramount importance considering the essentiality of a balance between integrity …

The Diaspora Of Ethnic Economies: Beyond The Pale?, Lan Cao

William & Mary Law Review

No abstract provided.

The U.S.-China Rule Of Law Initiative, Paul Gewirtz

William & Mary Bill of Rights Journal

No abstract provided.

Reconciling State Sovereignty And Protections For The Internally Displaced, Bartram Brown

All Faculty Scholarship

No abstract provided.

Indigenous Peoples, Indigenous Farmers: Nafta's Threat To Mexican Teosinte Farmers And What Can Be Done About It, Keith Sealing

American University International Law Review

No abstract provided.

National Human Rights Institutions: Good Governance Perspectives On Institutionalization Of Human Rights, C. Raj Kumar

American University International Law Review

No abstract provided.