Law Commons^™

An International Attribution Mechanism For Hostile Cyber Operations, Yuval Shany, Michael N. Schmitt

International Law Studies

This article is the result of an international research project organized by the Federmann Cyber Security Research Center at Hebrew University to consider the feasibility of establishing an international attribution mechanism for hostile cyber operations, as well as the usefulness of such a body. The authors observe that, at present, states wielding significant cyber capability have little interest in creating such a mechanism. These states appear to be of the view that they can generate sufficient accountability and deterrence based on their independent technological capacity, access to expertise and to offensive (active defense) cyber tools, political clout, security alliances, and …

Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell

Faculty Scholarship

No abstract provided.

Note: Building Blocks Of A Fundamental Right: A Thought Experiment On The Constitutional Right To A Livable Climate, Melanie Hess

Notre Dame Journal on Emerging Technologies

When civil rights lawyers sought to overturn Plessy v. Ferguson in the years leading up to Brown v. Board of Education, they faced a history of institutionalized segregation and inequality, constitutional acceptance of the “separate but equal” doctrine, and sharp social divisions on the issue. Other landmark cases of rights recognition, such as Obergefell v. Hodges and Roe v. Wade, similarly built upon years of evolution in law, precedent, and social opinion that made them inconceivable before their time. Early versions of the litigation strategies envisioning these judgments might have been tentative and vague, lacking in factual, legal, …

40 Years Later: It’S Time For U.S. Ratification Of The American Convention On Human Rights, Justin M. Loveland

Seattle Journal for Social Justice

No abstract provided.

Tax And Arbitration, William W. Park

Faculty Scholarship

When fiscal measures intertwine arbitration, undue mystification sometimes follows. To enhance analytic clarity, tax-related arbitration might be divided into three parts. The first derives from ordinary commercial disputes that become laced with incidental tax questions. A corporate acquisition, for example, might carry tax consequences which in turn implicate contract claims or defences presented to an arbitral tribunal for resolution. The second genre of tax-related arbitration arises in respect of cross-border investment disputes. Rightly or wrongly, foreign investors often perceive host-country fiscal enactments as discriminatory, unfair, or tantamount to expropriation, thus violating international commitments. Finally, arbitration comes into play under income …

When Does A Major Outbreak Become A Public Health Emergency Of International Concern?, David N. Durrheim, Lawrence O. Gostin, Keymanthri Moodley

Georgetown Law Faculty Publications and Other Works

The process of determining whether a Public Health Emergencies of International Concern (PHEIC) exists and should be declared has drawn increasing criticism over the past few years with allegations that it is more political than technical. Delaying declaration, where appropriate, means that the opportunity of garnering international solidarity and necessary resources in the early phases of epidemics, when public health measures may be more effective, is lost. A reform agenda aimed at enhancing WHO/Emergency Committee transparency and objectivity for the PHEIC declaration process is required.

Similar Interpretations, Different Conclusions: The Criminalization Of Hate Speech In The West, Michael Goryelov, Wesley S. Mccann

Northern Illinois University Law Review

The United States is unique internationally in that hate speech is not considered a criminal offense. Drawing from a sample of Western countries and their respective statutes, the analysis will look at different nations' interpretations of hate speech criminality. This study identifies common patterns in international criminal legal codes and compares them to U.S. jurisprudence, focusing on content neutrality and the ideological content of these laws. It was found that hate speech statutes internationally tended towards content neutrality, were structured similarly to anti-defamatory codes, and generally did not result in amendments/extensions of new regulatory laws. These findings imply a closer …

Business And Human Rights In The Context Of Sanctions: A Road To Filling The Governance Gap, Bahareh Jafarian

LLM Theses

As concerns about the negative impacts of sanctions on the human rights of civilians and the environment increases, it is necessary to reflect upon the lawfulness and legal status of such measures in international law, and their impact on business enterprises and the field of Business and Human Rights (BHR). While current academic literature tends to focus on implementation, enforcement and business compliance with unilateral and multilateral sanctions, the negative impacts of sanctions on non-state actors and resulting human rights violations are overlooked. Specifically, the relationship between sanctions law and the responsibility of businesses to respect human rights and the …

Pirates On The High Seas: An Institutional Response To Expanding U.S. Jurisdiction In Troubled Waters, Marshall B. Lloyd, Robert Summers

Faculty Articles

Collective efforts among governments and regional organizations is a vital part of the fight against piracy that represents a security threat to all nation states with respect to freedom to navigate the high seas. This paper provides a concise overview of piracy, contemporary maritime drug laws, and cases among the circuit courts to illustrate the procedural concerns that affect fundamental constitutional principles of jurisdiction. A possible solution to existing substantive and procedural due process issues is establishment of a regional judicial institution with broad powers to preside over criminal prosecutions that include maritime crimes. The suggestion may be a viable …

2020 Spring - Clihhr Newsletter, Cardozo Law Institute In Holocaust And Human Rights (Clihhr)

CLIHHR Newsletters

This Spring 2020 issue of the CLIHHR Newsletter documents the Institute’s legal advocacy, research, and educational initiatives during the early stages of the COVID-19 pandemic. It features commentary on human rights and public health, the launch of structural violence teaching guides, recognition of Professor Gabor Rona’s work by the International Criminal Court, student amicus advocacy for Indigenous communities in Brazil, virtual clinic achievements, faculty outreach, and alumni and student spotlights. The newsletter reflects CLIHHR’s continued commitment to international justice, accountability, and human rights education in a time of global crisis.

Delaware's New Competition, William J. Moon

Northwestern University Law Review

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

Transnational Fiduciary Law, Tamar Frankel

Faculty Scholarship

Fiduciary law is expanding throughout the world.¹ It seems to be a new phenomenon, but in reality, it is not. Fiduciary law is ancient. It existed centuries ago in Mesopotamia, ² Rome, ³ Egypt,⁴ Greece,⁵ as well as in Jewish ⁶ and Christian laws.⁷ Fiduciary duties arguably developed later in Great Britain when master landlords left for the holy land on religious crusades and had to rely on others to manage their estates.⁸ The ancient rules, such as those found in agency law in Mesopotamia, may not have been as sophisticated as the current ones-such …

Talking Foreign Policy, Radio Broadcasts

The International Journal of Ethical Leadership

No abstract provided.

Talking Foreign Policy, Radio Broadcasts Sept. 25, 2014, Jan. 29 And Sept. 4, 2015, Feb. 5 And Oct. 7, 2016

The International Journal of Ethical Leadership

No abstract provided.

Talking Foreign Policy, Talking Foreign Policy Radio Broadcasts: Sept. 6, 2013 And Jan. 31, 2014

The International Journal of Ethical Leadership

No abstract provided.

Talking Foreign Policy, Talking Foreign Policy Radio Show

The International Journal of Ethical Leadership

No abstract provided.

Implementing The United Nations Declaration On The Rights Of Indigenous Peoples In The United States: A Call To Action For Inspired Advocacy In Indian Country., Kristen Carpenter, Edyael Casaperalta, Danielle Lazore-Thompson

University of Colorado Law Review Forum

No abstract provided.

Member States' Due Diligence Obligations To Supervise International Organizations, Kristina Daugirdas

Law & Economics Working Papers

There are two reasons to consider obligations to supervise international organizations as a distinct category of due diligence obligations. First, due diligence obligations typically require states to regulate third parties in some way. But it is harder for states to regulate international organizations unilaterally than to regulate private actors within their own territories because international law protects the autonomy of those organizations. Second, such due diligence obligations merit attention because they may compensate for the dearth of mechanisms to hold international organizations accountable when they cause harm. These accountability concerns are especially acute when it comes to private individuals who …

The Right To Health In Immigration Detention During The Covid-19 Pandemic: An Examination Of Federal And International Law, Alaina Dye

Center for Health Law Policy and Bioethics

This article examines the United States’ response to the severe impact of the coronavirus (COVID-19) in immigration detention centers and considers the United States’ obligations to the vulnerable population of immigrant detainees. This article argues that the COVID-19 pandemic further demonstrates the United States’ lack of guaranteed health care for immigrant detainees and deportees despite international recognition of the human rights to health and life. The United States violates international law when immigrant detainees’ human rights are disregarded by lack of appropriate access to health care during a global pandemic. This article recognizes that discrimination against immigrants under the Trump …

Digitalisation And Its Impact On Innovation, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

Innovation is generally seen as good. Promoting innovation especially in the digital economy is often deemed vital. Increasing the level of innovation, after all, can promote sustainable development, economic growth, prosperity, and citizens’ overall welfare. So how can policy makers spur innovation in the digital economy? While there is no simple recipe, this study explores the interplay between innovation and the digital economy from the following seven angles: 1. Theoretical economic literature; 2. Macro view of current innovation levels; 3. Emerging trends in the digital economy; 4. Implications of sub-optimal innovation levels; 5. Variables that affect the supply of innovation; …

Beyond Culture: Reimagining The Adjudication Of Indigenous Peoples' Rights In International Law, Beatriz Garcia, Lucas Lixinski

Intercultural Human Rights Law Review

This article argues that the current model of Indigenous rights adjudication foregrounds essentialized notions of culture, backgrounding interests of Indigenous peoples (IPs) that are not necessarily related to culture. Culture imposes a burden that limits the possibilities of human rights for Indigenous peoples, which is at least in part attributable to the current model's lack of precision. We show that the jurisprudence on IP rights by international adjudicatory bodies focuses on culture without meaningful attempts to explain and define it, is imprecise on how culture affects the reading of the human right for which it serves as the basis, as …

Arresting The Nigerian Herders-Farmers Conflict: The Unconstitutionality Of The Ruga Policy, Jude Ezeanokwasa

Intercultural Human Rights Law Review

The Ruga policy which the Federal Government claims to be aimed at ending the herders-farmers conflict that has claimed thousands of lives and rendered thousands internally displaced is perceived in most segments of the Nigeria society as a policy that would exacerbate rather than end the conflict. It seeks to establish in the States of the Federation settlements for Fulani herders who are usually illegally armed with guns as against unarmed local farmers. Due to stiff opposition from mostly non-Fulani ethnic nationalities Government suspended the policy. Since the policy is only suspended and not jettisoned, it is possible that government …

Beyond Good Intentions: New Legislation On Foreign Aid Effectiveness

The International Lawyer

The new law and the corresponding OMB and key foreign aid agencies' guidelines require providers to follow best practices in the monitoring and evaluation (M&E) of U.S government (USG) foreign aid.2 A recent study conducted by the U.S. Government Accountability Office across the key USG foreign aid agencies identified a number of areas that needed improvement in the design, implementation, conclusions, and dissemination of foreign assistance evaluations.3 FATAA and the relevant guidelines will require providers to address those areas and focus their reporting requirements on tangible outcomes and the impact of their programming. In recent years, federal agencies have placed …

Paradox Of Hierarchy And Conflicts Of Values: International Law, Human Rights, And Global Governance, Jootaek Lee

Northwestern Journal of Human Rights

In an international society, hierarchies are set up differently among different countries and societies based on different values, which are naturally conflicting and colliding with each other and result in unstable conditions. Is hierarchy really necessary in an international society? Does more hierarchical order in international society mean more peace? Do we need a supranational organization like the European Union whose laws can pierce state sovereignty and bind citizens of each member state? Does the United Nations need to be reformed to create an effective hierarchy, which will give international society more peace, security, and protection of human rights? This …

New Technologies And Old Treaties, Bryant Walker Smith

Faculty Publications

Every road vehicle must have a driver able to control it while in motion. These requirements, explicit in two important conventions on road traffic, have an uncertain relationship to the automated motor vehicles that are currently under development—often colloquially called “self-driving” or “driverless.” The immediate legal and policy questions are straightforward: Are these requirements consistent with automated driving and, if not, how should the inconsistency be resolved? More subtle questions go directly to international law’s role in a world that artificial intelligence is helping to rapidly change: In a showdown between a promising new technology and an entrenched treaty regime, …

International Law, Steven R. Ratner

Book Chapters

International law is central to both the discourse and practice of global justice. It offers a critical institutional site for transforming theories about global justice into binding rules with institutional enforcement; many of its rules have strong claims to morality; and it can offer insights into the nature of just arrangements at the international level. This chapter first introduces the key participants and fundamental norms of international law that respond to the various claims of those participants. Second, it elaborates on the range of engagement by international legal scholarship with questions of global justice. Legal scholars have incorporated concepts of …

Reacting Against Treaty Breaches, Bruno Simma, Christian J. Tams

Book Chapters

States regularly proclaim the sanctity of treaty obligations and few principles are as firmly established as pacta sunt servanda. Yet, treaty breaches are by no means exceptional: adapting one of international law's most celebrated statements, one might even say that 'almost all nations, almost all the time, consider their rights under a given treaty to be violated: By way of a snapshot, at the time of writing, eleven of fourteen active contentious cases pending before the International Court of Justice (ICJ) involve claims, by one State, that a certain treaty has been violated. And this ignores the many treaty breaches …

Paper Terrorists: Independence Movements And The Terrorism Bar, Pooja R. Dadhania

Faculty Scholarship

This Article explores the application of the terrorism bar in immigration law to noncitizens who have participated in an independence movement. It proposes a uniform standard that immigration adjudicators can use to determine whether a foreign entity is a state in order to promote accurate applications of the terrorism bar. The terrorism bar in the Immigration and Nationality Act is broad — it can bar most forms of immigration relief, including asylum, and reaches far beyond ordinary definitions of terrorism. For example, the terrorism bar can block immigration relief for noncitizens who nonviolently supported a militia fighting for independence against …

Digital Information Law - Meaning, Challenge, And Future

The International Lawyer

Financial markets have most recently been disrupted by the sudden explosion and growth in new Information Technology (InfoTech),6 Data Technology (DataTech),7 Financial Technology (FinTech),8 and Regulatory Technology (RegTech) markets and devices.9 Reference may also be made to the use of technology in the provision of government services (GovTech) and in legal services (LawTech). A number of separate rights and interests can also be created which arise in the context of protecting information.20 All of this becomes of specific importance in the banking and financial area due to the fact that banks and other financial institutions manage accounts on behalf of …

Confucius And The Chinese Legal Tradition, Chenglin Liu

Faculty Articles

More than two thousand years ago, Confucius transformed and perfected an institution for governing Chinese people, which has been religiously replicated by subsequent dynasties. Within the Confucian institution, the King, at the pinnacle of the pyramid, held absolute authority; regional lords were loyal to the King; and commoners were submissive to the privileged. Confucius held that peace and order could only be achieved when people acted according to their hierarchical worth assigned by the ruler. This article offers an overview of the transformation of Confucianism. It then examines competing schools of thought-Legalism and Taoism-and explains why Confucianism triumphed to become …