Law Commons^™

Introduction By George A. Bermann, George A. Bermann

Faculty Scholarship

The accountability of states and state actors on the international scene is on a forward march. The fora in which this development is playing itself out are multiple: national courts of the state actor, national courts of other states, international tribunals of a more or less public law variety, private international law tribunals, and all manner of hybrids.

International Law Before The Supreme Court: A Mixed Record Of Recognition, Jordan J. Paust

Santa Clara Law Review

No abstract provided.

Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya

Publications

No abstract provided.

Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya

Publications

In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The author also examines the shortcomings of recurring interpretive approaches to international law that consider indigenous peoples' rights to land and resources. From this analysis the author identifies a more promising approach within the human rights framework--which he describes as a realist approach--that focuses on the confluence of values, power, and change. The author …

Re-Membering Law In The Internationalizing World, Vivian Grosswald Curran

Hofstra Law Review

This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community's inability to process common law information through civil law cognitive grids. The article addresses both the capacity …

Ambiguity, Sovereignty And Identity In Ireland: Peace And Transition, James J. Friedberg

Faculty & Staff Scholarship

No abstract provided.

In Search Of A Theory For Constitutional Comparativism, Roger P. Alford

Journal Articles

Constitutional comparativism - the notion that international and foreign material should be used to interpret the U.S. Constitution - is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge's interpretive mode of constitutional analysis. The Article presents four classic constitutional theories - originalism, natural law, majoritarianism, and pragmatism - and addresses the propriety of constitutional comparativism under each theory. This …

'Global Civil Society': A Sceptical View, Kenneth Anderson, David Rieff

Contributions to Books

American University, WCL Research Paper No. 2008-69 Abstract: The editors of the leading yearbook of global civil society studies offered to the authors of this article an opportunity to present a skeptical account of global civil society as the opening chapter in the 2004/5 yearbook. The article examines the standard account of global civil society as the transnational equivalent, in a globalized world, of civil society in a domestic society, and further as, in Kofi Annan's oft-repeated view, international NGOs as the representatives of the peoples of the world to international organizations such as the UN. The article attacks this …

Resolving Treaty Conflicts, Christopher J. Borgen

Faculty Publications

The viability of international law rests largely on the viability of treaties as a source of law. In the second half of the twentieth century, the international state system was supported by the development of treaties. States focused the majority of their regime-building efforts on three sets of concerns: restraining interstate conflict, securing human rights, and managing the economic system. States used treaties as the primary tool in the construction of these international institutions and in the codification of these norms. Moreover, treaties shift issues from the political arena into a juridical, rule-based, forum.

The very success of treaties as …

Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson

GW Law Faculty Publications & Other Works

The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although …

A Life In The Realm Of Rights: A Man And A Movement’S History, Tom J. Farer

Human Rights & Human Welfare

A review of:

Taking Liberties: Four Decades in the Struggle for Human Rights by Aryeh Neier. New York: PublicAffairs. 400pp.

Protecting Indigenous Peoples, Paul J. Magnarella

Human Rights & Human Welfare

A review of:

The Origins of Indigenism: Human Rights and the Politics of Identity by Ronald Niezen. Berkeley: University of California Press, 2003. 272pp.

and

Indigenous Peoples and the State: The Struggle for Native Rights by Bradley Reed Howard. Dekalb, IL: Northern Illinois University Press, 2003. 252pp.

Ending Impunity The Case For War Crimes Trials In Liberia, Charles Chernor Jalloh, Alhagi Marong

Faculty Publications

This paper argues that Liberia owes a duty under international law to investigate and prosecute the heinous crimes, including torture, rape and extra-judicial killings of innocent civilians, committed in that country by the various warring parties in the course of 14 years of brutal conflict. The authors evaluate the options for prosecution, starting with the possible use of Liberian courts. They argue that even if willing, the national courts are unable to render credible justice that protects the due process rights of the accused given the collapse of legal institutions and the paucity of financial, human and material resources in …

Dancing With The Devil: Prosecuting West Africa's Warlords: Building Initial Prosecutorial Strategy For An International Tribunal After Third World Armed Conflicts, David M, Crane

Case Western Reserve Journal of International Law

No abstract provided.

The Legality Of Torture As A Means To An End V. The Illegality Of Torture As A Violation Of Jus Cogens Norms Under Customary International Law, Stephanie L. Williams

University of Miami International and Comparative Law Review

No abstract provided.

Global Diseases, Global Patents And Differential Treatment In Wto Law: Criteria For Suspending Patent Obligations In Developing Countries, Bradly Condon, Tapen Sinha

Northwestern Journal of International Law & Business

Special and differential treatment of members is a controversial subject at the World Trade Organization ("WTO") and nowhere is the debate more pronounced than in the context of life-saving medicines and patent protection. However, concerns have been raised in WTO negotiations regarding how to ensure that special and differential treatment targets developing countries' trade, financial and development needs, without prejudicing the rights of other WTO members. In the fall of 2003, the WTO adopted a decision to amend the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") in order to enhance access to essential medicines in developing countries. In …

Newness, Imperialism, And International Legal Reform In Our Time: A Twail Perspective, Obiora Chinedu Okafor

Osgoode Hall Law Journal

No abstract provided.

The "War On Terror" And The "War Of Terror": Nomadic Multitudes, Aggressive Incumbents, And The "New" International Law: Prefactory Remarks On Two "Wars", Upendra Baxi

Osgoode Hall Law Journal

This article contrasts and compares the war on terror and the war of terror in the wake of, and before, 11 September 2001. The philosophical underpinnings involved in defining "terrorism" are analyzed in the context of the United States' war on terrorism and related wars of terrorism, such as the 1998 World Islamic Council's fatwa. Both wars fall within the wording of recent United Nations' Resolutions that address the adverse impact of terrorism on Human Rights. The understanding of the meaning of "terrorism" by those promoting the war on terrorism provides a powerful political tool, notwithstanding effects on Human Rights …

Assessing Claims Of A New Doctrine Of Pre-Emptive War Under The Doctrine Of Sources, James Thuo Gathii

Osgoode Hall Law Journal

After examining state practice and opinio juris on the preemptive use of force in the last few years, I conclude that the prohibition of preemptive war where there is no armed attack or an instant, overwhelming threat has not changed. Under customary international law, this prohibition of preemptive use of force is a customary international law norm of extremely high normativity and as such state practice inconsistent confirms the norm particularly in the absence of evidence of its widespread and representative repudiation. Second, under the doctrine of sources, state practice inconsistent with a norm of customary international law or persistent …

The International Law Of Environmental Warfare: Active And Passive Damage During Armed Conflict, Eric T. Jensen

Vanderbilt Journal of Transnational Law

One of the constant elements of warfare is its degrading effects on the environment. Many writers blame this destruction of the environment on inadequate standards in the international law of environmental warfare. To remedy this shortfall, the international law of environmental warfare should be categorized as either passive or active environmental warfare. Active environmental warfare requires the intentional "use" of the environment as a weapon of waging armed conflict. Passive environmental warfare includes acts not specifically designed to "use" the environment for a particular military purpose but that have a degrading effect on the environment. Passive environmental warfare violates international …

Subjects Of International Law: A Power-Based Analysis, Guido Acquaviva

Vanderbilt Journal of Transnational Law

In this Article, the Author challenges the definition of the term "state" that is commonly accepted in legal scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of …

Historical And Social Perspectives On The Regulation Of The International Trade In Archaeological Objects: The Examples Of Greece And India, Neil Brodie

Vanderbilt Journal of Transnational Law

Two empirical studies of the trade in cultural material have shown that strong export controls work. Between 1820 and 1870, pre-unification Italian states with strong export controls in place retained more of their cultural heritage (measured in terms of paintings and antique books) than states with weak or no controls. Thefts from cultural institutions in the Czech Republic rose sharply after 1989, the year the "Iron Curtain" was raised; though this example also highlights the curtailment of civil liberties that might be necessary for strong export controls to work and that are probably unacceptable in a liberal society. '

This …

Immunity For Artworks On Loan? A Review Of International Customary Law And Municipal Anti-Seizure Statutes In Light Of The "Liechtenstein" Litigation, Matthias Weller

Vanderbilt Journal of Transnational Law

Are we witnessing the emergence of a legal principle of immunity for artworks on loan from abroad? This Article analyzes to what extent such a principle exists or is about to come into being and what its legal potential might be. To this end, Part II examines one of the leading cases about artworks on loan, the Liechtenstein case, and compares it to other controversies about loaned artworks to identify possible signs of a development in court practice towards a principle of immunity for artworks on loan. Against the background of the legal weaknesses of a yet inchoate concept of …

Encyclopedia Of Genocide And Crimes Against Humanity, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This three-volume encyclopedia contains information and photographs about historical and recent instances of genocide and crimes against humanity. The introduction provides a brief history of recognition and definitions of genocide and related war crimes. The volumes focus on the political leaders in charge of the genocides and war crimes in addition to other facts about the crimes themselves.

Big Brother Or Eye In The Sky? Legal Aspects Of Space-Based Geo-Lnformation For Disaster Management, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Amongst the methods of gathering geo-information inter alia for disaster management purposes, the use of satellites is a particularly interesting one in view of their global coverage. In this area a number of recent interesting developments have taken place, such as the establishment of a Charter on Space and Major Disasters, and the rapidly evolving plans for GMES and GEOSS. These developments raise a number of legal issues, related to state responsibility, state liability, and the respective roles of intergovernmental organizations and commercial and/or private entities in this regard. These issues cannot be easily solved, since the international legal environment …

Disaster Relief And Governance After The Indian Ocean Tsunami: What Role For International Law?, David P. Fidler

Articles by Maurer Faculty

The tsunami in the Indian Ocean at the end of 2004 has produced heightened scrutiny of how international disaster relief is supplied and governed. This scrutiny connects to arguments by the International Federation of Red Cross and Red Crescent Societies that more effective and efficient disaster relief requires the significant development of international law on disaster relief. This commentary analyses the historical and current relationship between international law and disaster relief and challenges the arguments that more international law on disaster relief is needed.

From International Sanitary Conventions To Global Health Security: The New International Health Regulations, David P. Fidler

Articles by Maurer Faculty

In May 2005, the World Health Organization adopted the new International Health Regulations (IHR), which constitute one of the most radical and far-reaching changes to international law on public health since the beginning of international health cooperation in the mid-nineteenth century. This article comprehensively analyses the new IHR by examining the history of international law on infectious disease control, the IHR revision process, the substantive changes contained in the new IHR and concerns regarding the future of the new IHR. The article demonstrates why the new IHR constitute a seminal event in the relationship between international law and public health …

The Asian Century: Implications For International Law, David P. Fidler

Articles by Maurer Faculty

Predictions that the 21st century will be the "Asian century" have sparked analytical interest from many disciplines but not international law. This article focuses on what implications "Asia rising" may have for international law in the 21st century. The article begins by looking at the 19th and 20th centuries as the European and American centuries respectively to assess the impact these centuries made on international law. The article then analyses possible meanings for an Asian century and frames such a century's implications for international law around the concept of a "Concert of Asia". The article argues that, through a "Concert …

The Oas And Constitutionalism: Lessons From Recent West African Experience, Stephen J. Schnably

Articles

No abstract provided.

Re-Establishing The Sisseton-Wahpeton Oyate's Reservation Boundaries: Building A Legal Rationale From Current International Law, Angelique A. Eaglewoman

American Indian Law Review

No abstract provided.