Law Commons^™

Globalism From An African Perspective: The Training Of Lawyers For A New And Challenging Reality, Winston P. Nagan, Marcio Santos

UF Law Faculty Publications

This paper deals with the definition and implications of globalism generally and for African interests in particular. Its focus is on globalism as a cluster of social, economic, and political forces contesting for the controlling paradigm of international relations and international law. The article underscores the general issue of globalism's impact on the well-being of the international community. It also considers the impact of globalism on the U.N. Charter, and, in particular, the role of the United Nations in international economic order. The connections between globalism and society are considered as part of the changing character of war and political …

Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson

Law and Contemporary Problems

US President George W. Bush used force to bring the Taliban to its knees and create a fledgling democracy in Afghanistan, then invaded Iraq with the end goal of establishing a democracy there, as well. Meanwhile, presidential hopeful Barack Obama praised those who built democracy's arsenal to vanquish fascism, and who then built a series of alliances and a world order that would ultimately defeat communism, seeming to extol and vindicate the previous US efforts to impose democracy by force. These two leaders' struggles to nail down a definitive answer on whether force should ever be used to impose democracy …

Naturalism In International Adjudication, J. Patrick Kelly

Duke Journal of Comparative & International Law

No abstract provided.

Taxation As A Global Socio-Legal Phenomenon, Allison Christians, Steven Dean, Diane Ring, Adam H. Rosenzweig

Faculty Scholarship

This essay makes a proposal that may not be controversial among those with a particular interest in international law, but may be less accepted among those primarily interested in tax law: that international social and institutional structures shape, and are shaped by, historical and contemporary domestic policy decisions. As a result, to incorporate these lessons, tax scholarship should turn to fields such as international relations, organizational theory, and political philosophy to provide a broader framework for understanding the rapid changes that are taking place in tax policy and politics in the United States and around the world.

Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich

Faculty Working Papers

This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …

Of Prophets And Proselytes: Freedom Of Religion And The Conflict Of Rights In International Law, Peter G. Danchin

Faculty Scholarship

The case of proselytism presents a tangle of competing claims: on the one hand, the rights of proselytizers to free exercise of religion and freedom of speech; on the other hand, the rights of targets of proselytism to change their religion, peacefully to have or maintain a particular religious tradition, and to be free from injury to religious feelings. Clashes between these claims of right are today generating acute tensions in relations between States and peoples, a state of affairs starkly illustrated by the recent Danish cartoons controversy. Irrespective of their resolution in any particular domestic legal system, how should …

The Emergence And Structure Of Religious Freedom In International Law Reconsidered, Peter G. Danchin

Faculty Scholarship

This Article presents a critique of the historical evolution of the right to freedom of religion in international law. In identifying certain conceptual tensions between liberal and value pluralist accounts in the literature, a general theoretical argument is advanced. Beyond standard Enlightenment narratives of individual freedom of conscience, this argument notices a second, more complex narrative of genuine pluralism in the evolving conception of religious freedom in international legal thought. This suggests that there is no simple, but rather a complex mapping of individual toleration in international law and no single path to modernity or to the formation of the …

Suspect Symbols: Value Pluralism As A Theory Of Religious Freedom In International Law, Peter G. Danchin

Faculty Scholarship

The grounds upon which states may limit the freedom to manifest religion or belief are divisive questions in constitutional and international law. The focus of recent inquiry has been on laws which proscribe the wearing of religious symbols in certain aspects of the public sphere, and on the claims more generally to religious and cultural freedom of Muslim minorities in European nation-states. Stepping back from these debates, this Article aims at a more rigorous theoretical treatment of the subject. It asks whether there is a coherent notion of religious freedom in international legal theory and, if not, why not? In …

Beyond Rationalism And Instrumentalism: The Case For Rethinking U.S. Engagement With International Law And Organization, Peter G. Danchin

Faculty Scholarship

This Essay advances an argument for rethinking the current terms of engagement of U.S. foreign policy with international law and institutions so as to avoid the current two extremes of power politics and imperial moralizing. First, it is necessary to distinguish between force and the status of political domination on the one hand, and consensus and the status of normative meaning on the other. While it may be possible for a superpower to exercise factual authority and control over foreign states and peoples through sheer assertions of force and will, the attainability of such a situation should not be confused …

Rethinking "Effective Remedies": Remedial Deterrence In International Courts, Sonja Starr

Faculty Scholarship

One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an “effective remedy.” International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human …

Agreements That Divide: Trips Vs. Cbd And Proposals For Mandatory Disclosure Of Source And Origin Of Genetic Resources In Patent Applications Comment, Jonathan Carr

Florida State University Journal of Transnational Law & Policy

In an attempt to unify the regulation of intellectual property, the TRIPS Agreement sets forth standards for intellectual property law. Recently, however, many countries have become divided on the issue of whether member countries should be required to disclose the source and origin of genetic resources used in patented technologies. Developing countries claim that enforcement of such a requirement would help remedy the global biopiracy problem. This article reviews and assesses the many proposals to amend the TRIPS Agreement as well as the responses from countries, such as the United States, opposing the proposals. Included is a brief discussion about …

How To Entrench A De Facto State Church In Russia: A Guide In Progress, Robert C. Blitt

Scholarly Works

The Russian Orthodox Church's (ROC) assertion of a constitutionally inappropriate role in affairs of state has severely compromised Russia's secular constitutional framework. This gradual but steady erosion of the barrier between church and state is evidenced by a series of contemporary developments that are inexorably linked to the Church's vision of its traditional place in Russian history.

Disturbingly, each successive post-communist regime has further enabled this behavior, and there is no indication that the political transition from President Vladimir Putin to his hand-picked successor, Dmitry Medvedev, will change anything.

This paper argues that the emerging pattern of collusion presents a …

A Legal Regime For State-Owned Companies In The Modern Era, Phillip Riblett

Florida State University Journal of Transnational Law & Policy

Foreign state-owned companies (SOCs), particularly those in the energy sector, are more powerful than ever before. Yet under the Foreign Sovereign Immunities Act of 1976 (FSIA), agencies and instrumentalities-a category in which many SOCs fall-enjoy a presumption of immunity. At the same time, however, pursuant to the U.S. Supreme Court's 1983 decision in First National City Bank v. Banco Para el Comercio Exterior de Cuba, in most cases the foreign state also enjoys the benefit of legal separateness-i.e., it is very difficult for a third party to "pierce the corporate veil" between the sovereign and its subsidiary. Thus, SOCs enjoy …

Questioning The Silence Of The Bench: Reflections On Oral Proceedings At The International Court Of Justice, Cecily Rose

Florida State University Journal of Transnational Law & Policy

The growth of the docket of the International Court of Justice over the last several decades has been both a sign of its success and a source of its troubles. Because the Court's continued attractiveness as a forum for dispute settlement depends not only on the quality of its judgments, but also on the efficiency of its procedures, the Court has responded by attempting to modernize its working methods. Literature concerning the weaknesses of the Court's procedures, however, has not focused on how oral proceedings suffer from an absence of direct exchanges between the judges and counsel. The judges' hesitancy …

'Babushka Said Two Things - It Will Either Rain Or Snow; It Either Will Or Will Not': An Analysis Of The Provisions And Human Rights Implications Of Russia's New Law On Nongovernmental Organizations As Told Through Eleven Russian Proverbs, Robert C. Blitt

Scholarly Works

Longtime observers of Russia increasingly have called attention to and expressed profound concern for the direction the Russian Federation has taken in recent years. In advancing President Putin's vision of "dictatorship of law" and "managed democracy," the Russian government has retreated from key democratic reforms, undermining the transition away from Soviet rule and imperiling significant gains in fundamental human rights.

It is against this backdrop that, in January 2006, President Putin ratified major amendments to the 1996 Law on Nonprofit Organizations, which regulates the creation, reorganization, activity, and liquidation of NGOs in Russia. Putin has claimed that the amendments to …

A Comprehensive Solution For A Targeted Problem: A Critique Of The Eu’S Home State Taxation And Ccctb Initiatives, Ilan Benshalom

Faculty Working Papers

This Article examines the European Commission's Home State Taxation and CCCTB initiatives. It argues that both proposals undermine the long-term objective of attaining a consolidated European corporate tax regime. It suggests an alternative strategy, which offers a comprehensive formulary-tax-allocation-solution in one of the hard to tax sectors, such as the financial sector. This strategy requires more efforts and political risk-taking, but would better promote the long-term objective of a consolidated EU corporate tax regime.

An edited version of this article is scheduled to be published in a future issue of European Taxation (an IBFD publication).

Is International Law Coercive?, Anthony D'Amato

Faculty Working Papers

Can international law be enforced against a state? Against a superpower? Various current theories answer in the negative: dualism, consent, domestication, soft law, the New Haven school, and exceptionalism. But this Article claims that international law is enforced all the time by unilateral or multilateral reprisals. The stability of international law over time is a function of the successful working of the reprisal system. In sum, international law is a coercive order.

Why Is International Law Binding?, Anthony D'Amato

Faculty Working Papers

Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …

Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe

Faculty Working Papers

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem …

Educating Workers About Labor Rights And Global Wrongs Through Documentary Film, Fran Ansley

Scholarly Works

No abstract provided.

Delegation Success And Policy Failure: Collective Delegation And The Search For Iraqi Weapons Of Mass Destruction, Michael J. Tierney

Law and Contemporary Problems

Tierney argues that international delegation can have important consequences, even for powerful states. In particular, he contends that the US delegation of inspection authority to United Nations weapons inspectors and to the International Atomic Energy Association after the Gulf War of 1990-91 entailed significant sovereignty costs by affecting the timing and costliness of the subsequent 2003 US invasion of Iraq. Among other things, he notes that the inspectors' independent behavior made it much more difficult for the US to assemble the type of multilateral coalition that would share the costs as it had in the earlier Gulf War. Tierney also …

Free To Follow The Rules: A Glimpse At The Role Of Iraqi Media, Past, Present, And Future Comment, Cheryl D. Kluwe

Florida State University Journal of Transnational Law & Policy

The Iraqi media has always reflected the social attitudes of the people who controlled it and, to a much lesser degree, those of its recipients. This Comment is a brief foray into a few of the reasons for the recent changes in that dynamic. It is a discussion of how the transition of the native Iraqi media into a semblance of a free press has been affected by conditions both inside and outside of Iraq, public perception, and the U.S. government's varying influence over the Iraqi media. This short work as a whole underscores an uneasy symmetry between old attitudes …

The Case Of The Eroding Special Immigrant Juvenile Status, Wendi J. Adelson

Florida State University Journal of Transnational Law & Policy

This Article provides a case study of a larger problem in American administrative law: the creation of unexecuted rights, with a focus in particular on the recent degradation of the Special Immigrant Juvenile Status (SIJS). Nearly twenty years ago, Congress drafted legislation providing for a pathway to citizenship for unaccompanied minors. In subsequent years, the Department of Homeland Security has ignored Congress' mandate to issue policy directives implementing the benefits and privileges associated with SIJS in a manner that would allow eligible persons to take advantage of this status. After explicating the nature of this creeping erosion of the SIJS …

Bus Bombings And A Baby's Custody: Insidious Victories For Terrorism In The Context Of International Custody Disputes, Andrew Zashin

Faculty Publications

This article will address the problematic intersection of terrorism and child custody battles. The most immediate consequences of a terrorist attack are loved ones lost and buildings reduced to rubble. These losses are devastating, shocking and scary. But to end an analysis of terrorist victories with a body count is a fatal mistake. Americans fervently shout we cannot let "them" win, but how do we decide if they are winning? What do the terrorists want? It is not the goal of terrorists to simply kill Americans, causing death and destruction. That is merely a horrific means to their end. Terrorists …

The Birth Of The European Union: Us And Uk Roles In The Creation Of A Unified European Community, Bruce Carolan

Articles

The United States jealously guards its national sovereignty. This has been reflected in reluctance to participate fully in international agreements or organizations with a 'supranational' flavor, such as the International Criminal Court or the Kyoto Protocols. It is therefore surprising to find that the United States was one of the principal architects of the supranational characteristics of what has developed into the European Union. Specifically, the earliest stages of European integration, which is embodied in the European Coal and Steel Community Treaty, were heavily influenced by US insistence on creation of supranational institutions that could exert dominance over sovereign European …

Bottom-Up Lawmaking: The Private Origins Of Transnational Law, Janet Koven Levit

Indiana Journal of Global Legal Studies

This article introduces one way in which the private sector makes law- bottom-up transnational lawmaking. While this article explores one example in depth- the Berne Union's regulation of export credit insurance- it concludes that bottom-up lawmaking peppers our legal landscape in a profound and largely unacknowledged way. More specifically, this article discusses how the private sector engages in international lawmaking and contemplates the normative implications of privatized transnational lawmaking.

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law – Bloomington, April 12-13, 2007.

Taking Care Of Treaties, Edward T. Swaine

GW Law Faculty Publications & Other Works

There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope …

Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor

Fordham Law Review

No abstract provided.

Medellin's Clear Statement Rule: A Solution For International Delegations, Julian G. Ku

Fordham Law Review

No abstract provided.

Does Medellin Matter?, Janet Koven Levit

Fordham Law Review

No abstract provided.