Law Commons^™

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

Third-Party Liability For Violations Of The Law Of Nations: Apply International Law, The Law Of The Situs, Or Domestic Standards, Erin Stapp

Santa Clara Law Review

No abstract provided.

Intervention To Stop Genocide And Mass Atrocities: International Norms And U.S. Policy, Matthew C. Waxman

Faculty Scholarship

The collective international failure to stop genocidal violence and resulting humanitarian catastrophe in Sudan prompts the familiar question of whether the United States or, more broadly, the international community has the political will and capabilities necessary to deter or stop mass atrocities. It is well understood that mobilizing domestic and international political support as well as leveraging diplomatic, economic, and maybe even military tools are necessary to stop mass atrocities, though they may not always be enough. Other studies have focused, therefore, on what steps the United States and its international partners could take to build capabilities of the sort …

Breaking The Genuine Link: The Contemporary International Legal Regulation Of Nationality, Robert D. Sloane

Faculty Scholarship

The concept of nationality traditionally mediated the relationship between the individual and the state in a bygone era in which international law regarded only the latter as a genuine subject of the law; today, its international legal functions have expanded. Yet, as in the past, it remains unclear whether and how international law limits the otherwise almost plenary competence of states to confer their nationality by their internal laws in a way entitled to international recognition. After the International Court of Justice's ("ICJ") 1955 judgment in Nottebohm, however, lawyers began to express this limit with a kind of doctrinal mantra: …

Reclaiming International Law From Extraterritoriality, Austen L. Parrish

Articles by Maurer Faculty

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The …

The Federal Common Law Of Nations, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …

Soft Law As Delegation, Timothy Meyer

Vanderbilt Law School Faculty Publications

This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

Using International Dispute Resolution To Address The Compliance Question In International Law, Anna Spain

Publications

A fundamental critique of international law is that it fails to ensure compliance and, thus, has limited influence on state behavior. Existing compliance theories consider how interests, norms and legal process impact states. Within the legal process school, theories either narrowly define process as methods that achieve a legal aim or broadly consider diplomatic activities without connecting them to the structural elements of process. Thus, despite the prolific scholarship in this area, understanding of how an international dispute resolution process, such as the Six-Party Talks, influences state behavior, such as North Korea’s actions toward nuclear disarmament, remains limited.

To address …

Sanctions And International Law (Keynote Address), W. Michael Reisman

Intercultural Human Rights Law Review

Keynote Address by W. Michael Reisman, Myres S. McDougal Professor of International Law at Yale Law School, for the 2008 Intercultural Human Rights Law Review Annual Symposium.

Can International Law Work? A Constructivist Expansion, Harlan G. Cohen

Scholarly Works

An increasing number of scholars have begun to apply rational choice methodologies to the study of international law. Earlier rational choice scholarship voicing skepticism about international law’s true force has since been followed by sophisticated rational choice defenses of international law. This review essay focuses on Andrew Guzman’s recent book HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY (2008), one of the best of those defenses. In that book, Guzman develops an elegant and sophisticated account of 'reputation' and the role it can play in encouraging rational compliance with international law. Based on this account, Guzman makes a powerful case …

International Common Law: The Soft Law Of International Tribunals, Timothy L. Meyer, Andrew T. Guzman

Scholarly Works

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal's decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law.

Despite its inability to bind states, a tribunal can influence state behavior …

The Federal Common Law Of Nations, Bradford R. Clark

GW Law Faculty Publications & Other Works

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' "perfect rights" (or close analogues) under the …

The Kosovo Crisis: A Dostoievskian Dialogue On International Law, Statecraft, And Soulcraft, Antonio F. Perez, Robert J. Delahunty

Scholarly Articles

The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in International Law that began with NATO's 1999 intervention in Kosovo against Serbia. NATO's intervention called into question the authority and viability of U.N. Charter system for maintaining international peace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt a further blow to the central post-War legal rules and institutions for controlling and mitigating Great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for …

James Pattison On Waging Humanitarian War: The Ethics, Law, And Politics Of Humanitarian Intervention By Eric A. Heinze. Albany: Suny Press, 2009. 224pp., James Pattison

Human Rights & Human Welfare

A review of:

Waging Humanitarian War: The Ethics, Law, and Politics of Humanitarian Intervention by Eric A. Heinze. Albany: SUNY Press, 2009. 224pp.

David P. Forsythe On John Charvet And Elisa Kaczynska-Nay. The Liberal Project And Human Rights: The Theory And Practice Of A New World Order. New York, Ny: Cambridge University Press, 2008. 446pp., David P. Forsythe

Human Rights & Human Welfare

A review of:

John Charvet and Elisa Kaczynska-Nay. The Liberal Project and Human Rights: The Theory and Practice of a New World Order. New York, NY: Cambridge University Press, 2008. 446pp.

Considering The Margins: Developing A Broader Understanding Of Vulnerability To Trafficking, Christopher Anderson

Human Rights & Human Welfare

Efforts aimed at combating human trafficking should be directed at protecting those most vulnerable to being trafficked. There have been substantial efforts to create national and international laws punishing the act of trafficking, directed at those individuals caught trafficking people. While these laws create means by which to punish traffickers, they have not necessarily led to a reduction in the estimated numbers of trafficked people. This implies that simply approaching trafficking as a criminal activity is not enough. Instead, trafficking should be understood by the systemic factors that make populations vulnerable to trafficking. There may always be potential markets for …

Sexual Violence: Standing By The Victim, Navanethem Pillay

Case Western Reserve Journal of International Law

No abstract provided.

International Law And The Torture Memos, Michael P. Scharf

Case Western Reserve Journal of International Law

No abstract provided.

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Case Western Reserve Journal of International Law

No abstract provided.

Emerging Global Environmental Governance, N. Brian Winchester

Indiana Journal of Global Legal Studies

Environmental thinking and activism are steadily gaining widespread, even global acceptance, but are often in conflict with economic interests and international politics. Environmental priorities are further challenged by scientific uncertainty involving effects that in some cases will only become manifest far into the future. Nonetheless, accompanying this global environmental awakening has been an extraordinary number of international agreements on a wide range of critical environmental issues. While many of these environmental regimes lack adequate financial support and sanctions for non-compliance, they involve a variety of non-state actors, suggesting meaningful movement towards an evolving, complex form of global environmental governance. Indeed, …

Administrative Detention In Armed Conflict, Ashley S. Deeks

Case Western Reserve Journal of International Law

No abstract provided.

Practical Challenges Of Implementing The Complementarity Between International Humanitarian And Human Rights Law - Demonstrated By The Procedural Regulation Of Internment In Non-International Armed Conflict, Laura M. Olson

Case Western Reserve Journal of International Law

No abstract provided.

Transcript: Advocacy Before Regional Human Rights Bodies: A Cross-Regional Agenda, Victor Abramovich, Charlotte De Broutelles, Santiago Canton, Paolo Carozza, Andrew Drzemczewski, Jonathan Fanton, Leonardo Franco, Felipe González, Claudio Grossman, Elizabeth Abi-Mershed, Bahame Tom-Mukirya Nyanduga, Diane Orentlicher, Fatsah Ouguergouz, Diego Rodriguez-Pinzón, Sergio Garcia Ramirez, Manuel Ventura Robles, Pablo Saavedra

American University Law Review

No abstract provided.

Form, Function, And The Powers Of International Courts, Dinah L. Shelton

GW Law Faculty Publications & Other Works

At the end of the nineteenth century, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration. Since then, numerous courts and tribunals have been created on the international stage. This Article examines the interplay of form, function, and the powers exercised by international courts. It first considers the functions or attributes of any institution that carries the name "court" or "tribunal" and reflects upon whether there are powers that must be deemed inherent in such an institution to allow it to fulfill the judicial function, irrespective of limitations placed on the court's …

Sanctions, Countermeasures, And The Iranian Nuclear Issue, N. J. Calamita

Vanderbilt Journal of Transnational Law

The international community's response to Iran's nuclear development program highlights the sometimes complex legal relationship between the UN system of collective security and the rights of states to take unilateral countermeasures under the law of state responsibility. It also raises a number of important questions about (a) the discretion afforded to states in the interpretation and implementation of Security Council resolutions, (b) the availability of countermeasures for the violation of multilateral obligations, and (c) the exclusivity of the Chapter VII framework for collective security.

This Article argues that, while the Security Council's Iran sanctions resolutions do not grant discretionary authority …

Enforcing Human Rights In U.S. Courts And Abroad: The Alien Tort Statute And Other Approaches, John B. Bellinger, Iii

Vanderbilt Journal of Transnational Law

U.S. foreign policy--under every Administration--involves promoting respect for human rights around the world. Most of you probably know that the State Department spends a great deal of time and effort abroad, persuading foreign governments to change their human rights behavior and administering programs to advance the cause of human rights. What many of you may not be aware of, though, is that we are now quite frequently occupied "domestically" with suits by foreign plaintiffs in U.S. courts--often arising from conduct that occurred in other countries and has no significant connection to the U.S., that may not be consistent with our …

Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen

Vanderbilt Journal of Transnational Law

Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect …

Non-Refoulement: The Search For A Consistent Interpretation Of Article 33, Ellen F. D'Angelo

Vanderbilt Journal of Transnational Law

The international community rose to the challenge of addressing mass migration with the 1951 Convention Relating to the Status of Refugees (1951 Convention). The 1951 Convention established several important concepts as binding international law, including the requirements for refugee classification and the principle of non-refoulement. The duty of non-refoulement prohibits state-parties from expelling or returning a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion. According to the definition in Article 33, non-refoulement is applicable …

The Kosovo Crisis: A Dostoievskian Dialogue On International Law, Statecraft, And Soulcraft, Robert J. Delahunty, Antonio F. Perez

Vanderbilt Journal of Transnational Law

The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in international law that began with NATO's 1999 intervention in Kosovo. NATO'S intervention called into question the authority and viability of the UN Charter system for maintaining international peace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt another blow to the post-War legal rules and institutions for controlling and mitigating great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for destabilizing the international …

International Legal Responses To Kosovo's Declaration Of Independence, Jure Vidmar

Vanderbilt Journal of Transnational Law

On February 17, 2008, Kosovo declared independence. As of March 6, 2009, fifty-six states have recognized Kosovo's independence, while a number of states maintain that Kosovo's declaration of independence is illegal. There is no specific resolution calling for nonrecognition, yet whether an obligation of nonrecognition stems from UN Security Council Resolution 1244 is a highly disputed issue.

Resolution 1244 established an international territorial administration, affirmed Serbia's territorial integrity, and called for a political process leading to settlement of Kosovo's future status. Unlike in East Timor, the political process in Kosovo did not result in a prenegotiated path to independence, confirmed …